THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


THE  NATURE  AND  SOURCES  OF  THE  LAW 


THE  MACMILLAN  COMPANY 

MEW   YORK  •  BOSTON  •  CHICAGO   •  DALLAS 
ATLANTA  •  SAN  FRANCISCO 

MACMILLAN  AND  CO.,  LIMITED 

LONDON  •  BOMBAY  •  CALCUTTA  •  MADRAS 

MELBOURNE 

THE  MACMILLAN  COMPANY 
OF  CANADA,  LIMITED 

TOfiONTO 


NATURE    AND  SOURCES 


OF     'HE    LAW 


BY 

JOHN  CHIPMAN  GRAY 

LL.D.,  TALE  AND  HARVARD 
LATE  ROTALL  PROFESSOR  OP  LAW  IN  HARVARD  UNIVERSITY 


SECOND  EDITION 

FROM  THE  AUTHOR'S  NOTES,   BT 

ROLAND  GRAY,  LL.B. 


J!3eto  gotfe 

THE  MACMILLAN  COMPANY 
i  948 


FEINTED  IN   THE  UNITED   STATES   OF  AMERICA 


T 


COPYBIOHT,    1909, 

BT  THE  COLUMBIA  UNIVERSITY  PRESS 

COPTBIOHT,    1921, 

BY  ROLAND  GRAY 

New  and  Revised  Edition 
Completely  Reset 

Set  up  and  electrotyped.       Published  September,  1921. 


All  rights  reserved — no  part  of  this  book  may  be 
reproduced  in  any  form  without  permission  in  writing 
from  the  publisher,  except  by  a  reviewer  who  wishes 
to  quote  brief  passages  in  connection  with  a  review 
written  for  inclusion  in  magazine  or  newspaper. 


TO 

HIS  OLD  PUPILS 

WHOSE  AFFECTIONATE  REGARD 

HAS  BEEN  TO  HIM 
'A  LIFE-LONG  BLESSING 

FROM 
THEIE  GRATEFUL 

MASTER 


596189 


PREFACE 

TO  THE  FIRST  EDITION 

SOME  fifty  years  ago  I  came  across  a  copy  of  Austin's 
"Province  of  Jurisprudence  Determined,"  then  little  read 
in  England,  and  all  but  unknown  in  this  country;  and 
since  then,  although  my  work  has  been  mainly  on  other 
lines,  the  subject  has  seldom  been  for  long  wholly  out 
of  my  mind.  I  put  my  ideas  into  substantially  their 
present  shape  a  dozen  years  ago1;  I  have  held  them  in 
abeyance  more  than  the  prescribed  nine  years;  but  I 
doubt  if  they  would  ever  have  been  published  had  not 
Columbia  University  done  me  the  honor  of  applying  the 
lene  tormentum  of  an  invitation  to  give  a  course  of  lec- 
tures on  the  Carpentier  Foundation. 

The  lectures  were  read  at  Columbia  University  in 
the  spring  of  1908.  They  have  been  here  divided  into 
thirteen  chapters,  but  no  attempt  has  been  made  to  change 
the  familiar  style  they  bore  in  delivery.  The  use  of 
homely  expressions  and  examples  helps  one  to  keep  a  grasp 
on  the  facts  of  daily  life,  the  loss  of  which  is  the  chief 
danger  in  the  moral  sciences. 

There  may  not  be  so  good  a  defence  for  the  repetitions 
in  these  lectures;  readers  may  be  provoked  by  what  they 

1  Professor  Gray  delivered  a  brief  course  of  lectures  on  Compara- 
tive Jurisprudence,  at  the  Harvard  Law  School,  in  the  years  1896 
to  1000,  and  1901-1902. 


vu 


Viii  PREFACE 

will  consider  damnable  iteration;  but  here,  too,  it  seemed 
desirable  to  show  how,  in  approaching  the  Law  from 
different  points  of  view,  the  same  truths  emerge  as 
fundamental. 

My  wish  to  keep  the  lectures  within  moderate  limits 
has  led  to  the  omission  of  much  that  might  properly  have 
found  a  place  in  them.  For  a  fuller  and,  it  may  be,  a 
broader  treatment  of  several  of  the  subjects  treated,  I 
commend  to  the  reader  the  books  of  two  of  my  learned 
friends,  "Studies  in  History  and  Jurisprudence,"  by  Mr. 
James  Bryce,  now  British  Ambassador  at  Washington, 
and  a  "First  Book  of  Jurisprudence,"  by  Sir  Frederick 
Pollock,  Corpus  Christi  Professor  of  Jurisprudence  at 
Oxford. 

The  student  of  Jurisprudence  is  at  times  troubled  by 
the  thought  that  he  is  dealing  not  with  things,  but  with 
words,  that  he  is  busy  with  the  shape  and  size  of  count- 
ers in  a  game  of  logomachy,  but  when  he  fully  realizes 
how  these  words  have  been  passed  and  are  still  being 
passed  as  money  not  only  by  fools  and  on  fools,  but  by 
and  on  some  of  the  acutest  minds,  he  feels  that  there 
is  work  worthy  of  being  done,  if  only  it  can  be  done 
worthily. 

I  have  endeavored  to  acknowledge  my  conscious  indebt- 
edness to  other  writers,  but  when  one  has  been  reading 
and  thinking  on  a  subject  for  half  a  century,  it  is  difficult, 
indeed  impossible,  to  tell  what  is  one's  own  and  what  one 
owes  to  others.  It  is  best  to  make  no  claim  to  originality ; 
I  make  none. 

It  is  a  pleasure  to  render  my  hearty  thanks  to  the 
authorities  of  the  University,  and  especially  to  Dean 


PREFACE  IX 

Kirchwey  and  the  other  members  of  the  Faculty  of  Law, 
for  their  cordial  welcome  and  encouragement. 

J.  C.  G. 

JULY  14,  1909.' 

*The  author's  seventieth  birthday.  For  an  account  of  his  life,  see 
28  Harvard  Law  Rev.  539;  1  Mass.  Law  Quart.  (No.  2)  29;  Pro- 
ceedings of  Mass.  Hist.  Soc.,  March,  1915,  and  May,  1916;  and 
memoir,  privately  printed,  Boston,  1917. 


PREFACE 

TO  THE  SECOND  EDITION 

At  the  time  of  Professor  Gray's  death,  in  1915,  he  had 
made  notes  for  a  second  edition  of  this  hook.  His  chief 
reason  for  repuhlishing  the  work  was  the  desire  to  put  it 
into  a  form  which  would  reach  a  larger  number  of  readers. 
This  purpose  I  have  tried  to  accomplish  in  several  ways, 
some  of  which  were  expressly  indicated  by  the  author, 
others  were  adopted  by  me  to  carry  out  his  intention. 

The  quotations  in  Latin,  Greek  and  German  have  been 
translated  at  the  foot  of  the  page;  and  most  of  the  tech- 
nical legal  terms  have  been  explained.  Citations  have 
been  added  to  references  and  quotations,  where  I  could 
find  them.  There  have  been  several  transpositions,  but  no 
omissions  except  of  a  few  paragraphs  at  the  beginning. 
The  additions  to  the  text,  as  distinguished  from  the  notes, 
are  all  due  to  the  author. 

Much  has  been  written,  since  the  publication  of  the 
first  edition,  on  the  subjects  with  which  this  volume  deals. 
As  the  author  did  not  at  all  change  his  views,  nor  consider 
it  advisable  to  deal,  in  the  new  edition,  with  what  had 
been  written  for  or  against  his  opinions  since  their  pub- 
lication, I  have  not  discussed  such  writings,  nor  even,  in 
most  cases,  mentioned  them.  I  have  ventured,  however, 
to  refer  to  some  passages  in  recent  books  and  magazines 
which  illustrate  statements  made  in  the  book.  Such  refer- 

xi 


Xli  PREFACE 

ences  include  only  a  small  fraction  of  the  works  read  in 
the  preparation  of  this  edition ;  and  the  material  so  read  is 
only  a  part  of  what  has  been  published,  in  English  alone, 
since  the  first  appearance  of  the  book.  No  attempt  has 
been  made  to  cover  the  ground  completely  by  these  annota- 
tions, incidental  to  a  revision  of  which  the  principal  object 
is  an  alteration  in  form. 

As  the  additions  to  the  text  and  the  notes,  whether 
made  by  the  author  or  myself,  are  all  of  an  explanatory 
or  illustrative  character,  or  else  of  no  great  importance,  I 
have  not  thought  it  necessary  to  distinguish  the  new  por- 
tions. I  have  to  thank  Russell  Gray,  Esquire,  for  various 
suggestions,  and  for  looking  over  the  proofs. 

ROLAND  GBAT. 
Boston,  1921. 


TABLE  OF  CONTENTS 

PART  I 
NATURE  OF  THE  LAW 

PAGE 

INTRODUCTION 1-5 

Analytic  study  of  legal  conceptions 1 

Classification  and  definition 

Value  of  concrete  instances 4 

CHAPTER  I 

LEGAL  RIGHTS  AND  DUTIES 7-26 

Rights  and  duties  in  general 7 

Ambiguity  of  word  "right" 8 

Relation  of  public  opinion  to  rights 9 

Legal  rights  and  duties 12 

Legal  and  moral  rights 12 

"Legal  duty" 15 

The  term  "jwst" 16 

Protected  interests  and  rights 17 

Ways  of  protecting  interests 19 

Right  to  a  defence 20 

Intervention   of   administrative  officers 22 

Free  will  and  legal  rights 23 

Free  will  and  legal  duties 24 

CHAPTER  II 

LEGAL  PERSONS        27-64 

The  term  "person" 27 

Normal   human  beings 28 

Abnormal    human    beings 29 

Fictions  in  the  Law 30 

In  the  Common  Law 31 

Disuse  of  fictions 35 

Dogmatic  fictions 36 

Attribution  of  will  to  abnormal  human  beings     ...  37 

Unborn  children 38 

Supernatural  beings 39 

Animals  as  having  rights 42 

xiii 


XIV  TABLE  OF  CONTENTS 

PAOl 

Animals  as  subject  to  duties 44 

Inanimate  things   as  having  rights 46 

Inanimate  things  as  subject  to  duties 46 

Juristic  persons 49 

Corporations 50 

Is  a  corporation  a  real  thing? 52 

Has  a  corporation  a  real  will? 54 

Creation    of    corporations 56 

Corporations  sole 57 

Stiftungen 58 

The  fiscus 60 

Hereditas  jacens 61 

Ihering's  doctrine  of  passive  rights 61 

CHAPTER  III 

THE  STATE 65-83 

The  State  an  artificial  person 65 

Creators  of  the  State 67 

Power  of  the  State 69 

Theory  of  divine  origin  of  the  State 70 

"Might  is  right" 71 

The   social   contract 72 

Sovereignty         74 

In  the  United  States 76 

Idea  of  a  Sovereign  unnecessary 79 

Legal  rights  of  the  State 79 

Partial  exercise  of  power  to  create  rights     ....  81 

CHAPTER  IV 

THE  LAW 84-112 

Definition  of  the  Law 84 

Law  as  the  command  of  the  Sovereign 85 

"A  Law"  and  "The  Law" 87 

Law  in  the  consciousness  of  the  people 89 

Opinions   of   jurists 90 

Judges  as  discoverers  of  the  Law 93 

Only  what  the  Judges  lay  down  is  Law 93 

Questions  not  previously  decided 96 

No  Law  previous  to  decision -98 

Courts  make  ex  post  facto  Law 99 

Law  and  the  Natural  Sciences 101 

Decisions  as  conclusive  evidence  of  the  Law      .      .      .  101 

Law  distinguished  from  other  rules  for  conduct    .      .      .  104 

The  Law  not  always  obeyed 105 

The  Law  consists  of  rules  made  by  the  State    ....  107 

Laws  of  bodies  other  than  the  State 108 

The  Church  of  England 109,  note 

General  administrative  rules  are  laws  110 


TABLE  OF  CONTENTS 


CHAPTER  V 

PAGE 

THE  COUBTS 113-125 

Office  of  a  Judge 113 

Power  to  enforce  decisions  not  essential 115 

Difference  ot  opinion  between  courts 116 

Independent  coordinate  courts 118 

Independent  courts  for  different  matters 118 

Courts  with  limited  right  of  appeal 119 

Limits  of  judicial  power 121 

Indication  of  sources  of  Law 123 

Statutes  as  a  source  of  Law 124 

CHAPTER  VI 

THE  LAW  OF  NATIONS 126-132 

Relation  between  nations 126 

"International  Law" 127 

"Private    International    Law" 128 

Is  International  Law  really  Law? 130 

Law  in  becoming 131 

CHAPTER  VII 

JtTBISPBUDENCE 133-151 

Particular    Jurisprudence 133 

Comparative  Jurisprudence 134 

General   Jurisprudence 135 

Supposed  necessary  principles  of  Law 136 

Deontological  or  ethical  element 139 

Ethical  element  necessary 141 

Ethical  element  in  Comparative  Jurisprudence     .      .      .  143 

Jurisprudence  as  a  purely  formal  science 144 

Essence  of  Jurisprudence  is  method 147 

Principles  common  to  two  systems 148 

Historical    Jurisprudence 150 


PART  II 

SOURCES  OF  THE  LAW 
CHAPTER  VIII 


STATUTES        

Legislatures 

Various  designations  of  statutes 
Rules  of  bodies  other  than  the  State 
"Autonomy"  in  German  Law 


152-197 
152 
153 
155 
158 


XVI  TABLE  OF  CONTENTS 

PACK 

Form  of  statutes 159 

Generality  of   statutes 161 

Foreign  statutes 162 

Enactment  of  statutes :    Civil  Law 162 

English  Law 167 

In  the  United  States 

Interpretation   of  statutes 170 

The  Judge  has  the  last  word 171 

Legislative  intent  frequently  non-existent 172 

Rules  of  construction  for  deeds  and  wills 173 

Methods   of   interpretation   of   statutes 176 

Rules  of  the  Common  Law     . 178 

Interpretation  of  the  Twelve  Tables V  180 

Power  of  courts  over  statutes 181 

When  amendment    is  difficult,  interpretation  is  free     .  183 

Interpretation  of  compilations 186 

Legislative   interpretation 187 

Desuetude  of  statutes 189 

Civil   Law 190 

Common   Law 193 

English  statutes  in  America 196 

Desuetude  of  statutes  in  the  United  States     ....  197 

CHAPTER  IX 

JUDICIAL  PBECEDENTS 198-240 

Precedents    in   general 198 

Judicial  Precedents  as  sources  of  Law 200 

Roman  Law 200 

German  Law 205 

French  Law 210 

Scotch  Law 210 

English    Law 211 

The  Year  Books • 213 

Early  reporters 215 

Decisions  in  same  or  coordinate  court 216 

House  of  Lords  bound  by  its  own  decision     .      .      .      .  217 

Decision  in  higher  court 217 

Are  decisions  sources  of  Law? 218 

Blackstone's   theory 219 

Historically  judges  make  Law 224 

Consequences  of  Blackstone's  theory 226 

Municipal  bond  cases 227 

Sense  in  which  rule  must  exist  before  decision     .      .      .  230 

Decisions  often  change  the  Law 231 

Mr.  Carter's  theory 233 

Judge-made  Law  and  the  Sovereign 233 

Law  as  created  by  custom 235 

Often  no  custom  before  decisions 236 

Part  played  by  individual  judges 239 


TABLE  OF  CONTENTS'  XVll 
CHAPTER  X 

PAGE 

JUDICIAL  PRECEDENTS  IN  THE  UNITED  STATES    ....      241-25§ 

Decision  in  same  or  coordinate  court 241 

No  court  bound  absolutely  by  its  own  decision     .      .      .  242 

Decision  in  higher  court 243 

Decision  in  another   State 243 

English  decisions 244 

Decisions  as  sources  of  Law:  Federal  and  State  Courts    .  248 

Swift  v.  Tyson 251 

Inconsistent  with  any  theory 254 

Municipal    bond    cases 256 

CHAPTER  XI 

OPINIONS  OF  EXPEBTS 260-281 

Opinions  of  experts  as  sources  of  Law 260 

Obiter  dicta  of  Judges 261 

Text  writers 262 

Comparative  weight  of  different  jurists:  In  the  Civil  Law  263 

In  the  Common  Law 266 

Necessity  of  some  authority  besides  statutes      .      .      .  267 

Comparison  of  the  Civil  and  the  Common  Law     .      .      .  268 

Practical   differences   of   method 272 

Dangers  of  imaginary  cases   . 276 

Multitude  of  theories  in  the  Civil  Law 278 

Advantages  of  judicial  decisions  as  authorities     .      .      .  279 

Increasing  importance  of  the  jurist 280 

CHAPTER  XII 

CUSTOM 282-301 

Custom  as  a  source  of  Law 282 

Mr.  Carter's  view 283 

Custom  is  not  opinion 285 

Morality  rather  than  custom  the  guide 287 

Adjective  Law  independent  of  custom 291 

Custom   important:     In   interpretation 292 

In   questions   of  negligence 293 

Judicial  decisions  most  frequently  lie  at  origin  of  Law    .  294 

Miners'  customs 296 

Custom  often  arises  from  judicial  decisions     ....  297 

Custom  as  evidence  of  the  Law 299 

Decisions  often  independent  of  custom 300 

CHAPTER  XIII  . 

MORALITY  AND  EQUITT 302-309 

Morality  a  necessary  source  of  Law 302 

Scope  of  term  "morality" 303 


TABLE  OF  CONTENTS 

PAGE 

Morality  as  a  topic  for  Jurisprudence 303 

The  test  of  morality '     .     .  305 

Equity 307 

Relation  of  Law  to  morality 308 


APPENDIX  I 
PI  I  U8U8  IN  THE  LATER  ROMAN  EMPIRE    .     .     .     .     .       310-314 

APPENDIX  II 
HEREDITAS  JACENS 315-319 

APPENDIX  III 
RECEPTION  OF  THE  ROMAN  LAW 320-324 

APPENDIX  IV 
AUTONOMY 325-328 

APPENDIX  V 
DESUETUDE  OF  STATUTES  IN  THE  UNITED  STATES    ,  329-334 


PART  I 
THE  NATURE  OF  THE  LAW 

INTRODUCTION 

THE  Law  of  a  community  consists  of  the  general  rules  Analytic 

.  .          study  of 

which  are  followed  by  its  -judicial  department  in  establish-  legal 

^       .  r  concep- 

ing  legal  rights  and  duties.1     To  determine  the  Law,  we 

have  to  consider  the  sources  from  which  that  department 
has  drawn  it. 

In  this  volume  I  propose  to  call  your  attention  to  the 
analysis  and  relations  of  some  fundamental  legal  ideas, 
rather  than  to  tell  their  history  or  prophesy  their  future 
development.  Not  that  I  am  insensible  to  the  value  of 
historical  studies,  nor  blind  to  the  fact  that  legal  concep- 
tions are  constantly  changing,  yet,  to  borrow  a  figure  from 
the  shop,  it  is  well  at  times  to  take  account  of  stock,  to 
consider  and  analyze  Law  in  the  stage  of  development 
which  it  has  reached,  although  we  believe  it  neither  pos- 
sible nor  desirable  that  the  development  should  not  go  on. 
in  the  future. 

Besides,  as  one  should  remember,  though  most  legal  con- 
ceptions alter,  and  there  may  be  few  which  are  so  based  on 
eternal  principles  that  they  cannot  change  while  the  order 
of  nature  continues,  yet  their  change  is  often  exceedingly 
slow,  and  many  of  them  go  back  as  far  as  we  have  a  clear 

1See  pp.  84  et  seq.  post. 
1 


2      THE  NATURE  AND  SOURCES  OF  THE  LAW 

knowledge  of  human  affairs,  and  show  to  our  eyes  no  signs 
of  decay. 

The  analytic  study  of  the  general  conceptions  of  the 
Law  is  not,  as  experience  has  shown,  without  its  dangers. 
It  may  easily  result  in  a  barren  scholasticism.  "Juris- 
prudence," as  Mr.  Dicey  says,1  "is  a  word  which  stinks  in 
the  nostrils  of  a  practising  barrister.  A  jurist  is,  they 
constantly  find,  a  professor  whose  claim  to  dogmatise  on 
law  in  general  lies  in  the  fact  that  he  has  made  himself 
master  of  no  one  legal  system  in  particular,  whilst  his 
boasted  science  consists  in  the  enunciation  of  platitudes 
which,  if  they  ought,  as  he  insists,  to  be  law  everywhere, 
cannot  in  fact  be  shown  to  be  law  anywhere."  Yet,  as 
Mr.  Dicey  in  the  same  article  goes  on  to  show,  "Prejudice 
excited  by  a  name  which  has  been  monopolised  by  pedants 
or  impostors"  should  not  blind  us  to  the  advantage  of 
having  clear  and  not  misty  ideals  on  legal  subjects. 

Especially  valuable  is  the  negative  side  of  analytic' 
study.  On  the  constructive  side  it  may  be  unfruitful; 
but  there  is  no  better  method  for  the  puncture  of  windbags. 
Most  of  us  hold  in  our  minds  a  lot  of  propositions  and 
distinctions,  which  are  in  fact  identical,  or  absurd,  or 
idle,  and  which  we  believe,  or  pretend  to  ourselves  to  be- 
lieve, and  which  we  impart  to  others,  as  true  and  valu- 
able. If  our  minds  and  speech  can  be  cleared  of  these,  it 
is  no  small  gain. 

This  is  the  great  merit  of  Austin.  His  style  is  in- 
expressibly wearisome.  He  himself  once  expressed  a 
doubt  whether  his  love-letters  were  not  written  in  the 
fashion  of  an  equity  draughtsman;  and  certainly  his 

*5  Law  Mag.  and  Rev.   (4th  series)   382. 


INTRODUCTION  3 

treatise  resembles  in  manner  more  the  charging  part  of 
an  old  bill  in  equity  than  any  other  kind  of  human  com- 
position. The  insolence  of  his  language  also — though 
very  likely  not  of  his  thought — is  often  offensive,  and 
the  theories  which  he  advanced  have  not  remained  un- 
shaken. But  his  unwillingness  to  let  others  juggle  with 
words,  or  to  juggle  with  them  himself,  or  knowingly  to 
leave  any  dark  corner  of  a  subject  unexplored,  has  seldom 
been  equalled,  and  to  many  students  has  made  the  reading 
of  his  crabbed  book  a  lesson  never  to  be  forgotten  in  in- 
tellectual honesty.1 

The  task  of  an  analytic  student  of  the  Law  is  the  task  ciassiflca- 
of  classification,  and,  included  in  this,  of  definition.  It  definition 
has  been  truly  said  that  he  who  could  perfectly  classify 
the  Law  would  have  a  perfect  knowledge  of  the  Law; 
but  the  besetting  sin  of  the  analytic  jurist  is  the  convic- 
tion that  his  classification  and  definitions  are  final.  He 
is  often  sensitive,  over  sensitive,  to  this  fault  in  other 
writers,  but  he  feels  that  he  himself  has  said  the  last  word. 
I  cannot  hope  to  escape  this  failing  of  all  our  tribe.  But 
I  want  to  warn  my  readers  of  its  existence,  that  they  may 
exercise  a  judicious  scepticism.  I  shall  be  more  than  sat- 
isfied if  I  can  interest  them  enough  in  the  subject  to  make 
them  think  it  worth  while  to  question  my  conclusions. 

The  Common  Law  has  often  been  reproached  with  the 
lack  of  precision  and  certainty  in  its  definitions,  but,  in 
truth,  it  is  a  great  advantage  of  the  Common  Law,  and 
of  the  mode  of  its  development  by  judicial  decision,  that 
its  definitions  are  never  the  matters  resolved  by  the  cases ; 

irThe  above  four  paragraphs  are  reproduced  in  substance  from  the 
author's  article,  "Some  Definitions  and  Questions  in  Jurisprudence," 
in  6  Harvard  Law  Rev.  21,  23. 


4  THE  NATURE  AND  SOURCES  OF  THE  LAW 

they  are  never  anything  but  dicta.  If  at  the  end  of  the 
sixteenth,  or  of  the  seventeenth,  or  even  of  the  eighteenth 
century,  there  had  been  definitions  binding  by  statute  on 
the  Courts;  if  the  meaning  of  "contract,"  and  "malice," 
and  "possession,"  and  "perpetuities,"  had  been  fixed,  what 
fetters  would  have  been  imposed  on  the  natural  develop- 
ment of  the  Law.  And  it  is  the  great  disadvantage  of  a 
written  code,  that  practising  lawyers  and  jurists  alike  are 
hampered  by  the  cast-iron  classification  and  definitions  of 
a  former  generation,  which,  in  the  advancement  of  legal 
thought  and  knowledge,  are  now  felt  to  be  imperfect  and 
inadequate.1 

But  although  our  attempts  at  classification  are  neces- 
sarily provisional  and  temporary,  although  the  one  certain 
prophecy  that  the  legal  writer  can  make  is  that  the  classi- 
fication which  approves  itself  to  him  at  the  beginning  of 
the  twentieth  century  will  surely  not  be  the  one  which  will 
prevail  at  its  end,  yet  our  imperfect  efforts  may  not  be 
useless ;  our  classification  and  our  definitions,  inadequate 
as  they  will  doubtless  prove  to  be,  may  yet  be  stepping- 
stones  to  higher  things.  It  may  be  well  to  climb  up  the 
hill  of  knowledge,  although  we  feel  sure  we  shall  never 
reach  the  top. 

The  danger  in  dealing  with  abstract  conceptions, 
whether  in  the  Law  or  in  any  other  department  of  human 
knowledge,  is  that  of  losing  foothold  on  the  actual  earth. 
The  best  guard  against  this  is  the  concrete  instance,  the 
example.  Much  fine-spun  speculation  has  been  demol- 
ished by  showing  that  it  did  not  fit  the  facts.  I  shall, 
therefore,  try  to  test  the  soundness  of  any  theories  I 

xCf.  Chalmers,  Bills  of  Exchange  (8th  ed.)   p.  liii. 


INTRODUCTION  5 

may  advance,  by  applying  them  to  sets  of  facts  and  seeing 
how  they  work  in  practice.  NOT  shall  I  apologize  for 
the  familiar  and  homely  character  of  my  instances — the 
more  familiar  the  better. 

The  Common  Law  is  the  system  whose  fundamental 
conceptions  I  shall  try  to  analyze,  but  from  time  to  time 
I  will  compare  them  with  the  like  conceptions  in  the 
Civil  Law,1  as  exemplified  in  the  Law  of  Rome,  of  Ger- 
many, of  France,  and  of  Scotland.  As  to  the  other  coun- 
tries of  Europe,  I  regret  to  say  that  I  have  next  to  no 
knowledge  of  their  Law. 

1/.e.   the  law   deriving   its   origin   from   ancient   Rome. 


CHAPTEK  I 

LEGAL   EIGHTS   AND   DUTIES 

THE  Law  is  so  closely  concatenated  that  it  is  hard  to 
determine  where  to  approach  it;  an  attack  upon  any 
part,  to  be  successful,  seems  to  call  for  a  previous  knowl- 
edge of  other  parts.  Yet  one  must  begin  somewhere. 
Where  shall  it  be  ?  Man  was  not  made  for  the  Law,  but 
the  Law  for  man.  The  Law  has,  for  its  subject-matter, 
the  legal  rights  and  duties  of  men.  With  those  rights  and 
duties  we  will  begin.  But  first,  a  word  or  two  on  rights 
and  duties  in  general. 

Human  intercourse  in  all  stages  of  civilization  above  Rights  an<n 
the  lowest  condition  of  savagery  (if  even  that  be  an  ex-  general 
ception)  assumes  that  there  is  a  difference  between  right 
and  wrong,  and  that  men  ought  to  do  right  and  to  refrain 
from  doing  wrong.  I  do  not  propose  to  consider  the  true 
test  of  right  and  wrong, — whether  it  be  the  will  of  God, 
or  living  according  to  Nature,  or  the  dictates  of  con- 
science, or  the  principle  of  utility,  or  anything  else;  nor 
shall  I  attempt  to  analyze  the  meaning  of  the  word 
"ought,"  or  to  explain  the  origin  of  the  feeling  of  obliga- 
tion; whatever  its  origin,  the  members  of  every  society 
which  is  far  enough  advanced  to  have  a  Law  have  ac- 
quired it. 

The  ambiguity  of  language  has  been  an  obstacle  in 
the  path  of  even  the  physical  sciences,  but  the  harm  which 

7 


8      THE  NATURE  AND  SOURCES  OF  THE  LAW 

it  has  worked  in  the  moral  sciences  is  far  greater.  These 
latter  deal  with  the  conduct  of  life,  and  we  are  con- 
stantly using  words,  now  loosely,  as  the  counters  of  daily 
talk,  and  now  with  an  attempt  to  pin  them  down  to  serve 
as  the  exact  expressions  of  the  most  abstract  notions.  So 
it  is  with  the  word  "right." 

Ambiguity  In  most  of  the  languages  of  Europe,  the  same  word 
••right"  is  used  to  express  "a  right"  and  also  "Law."  Thus,  jus, 
recht,  droit,  diritto,  derecho,  etc.  This  double  meaning 
of  the  word  has  worked  woeful  confusion  in  the  legal 
philosophy  of  the  Germans.  If  they  have  finally  grasped 
the  distinction  between  what  they  style  objectives  recht, 
or  "Law,"  and  subjectives  recht,  or  "a  right,"  the  grasp 
is,  on  the  part  of  many  writers,  with  a  by  no  means  firm 
hand. 

Though  in  English  we  are  spared  this  particular  am- 
biguity, the  English  word  "right"  furnishes  another.  It 
is  sometimes  a  substantive  and  sometimes  an  adjective. 
As  an  adjective,  "right"  means  "in  accordance  with  what 
ought  to  be."  But  what  does  "right"  mean  as  a  sub- 
stantive? When  we  say  that  John  Doe  has  a  right  to 
a  farm,  what  do  we  mean?  I  am  not  speaking,  for  the 
moment,  of  legal  rights.  But,  apart  from  the  Law,  has 
a  man  rights,  and  if  so,  what  are  they?  He  certainly 
has,  in  common  parlance.  Let  us  try  to  get  at  the  mean- 
ing of  the  word  a  little  more  precisely. 

Right  is  a  correlative  to  duty;  where  there  is  no  duty 
there  can  be  no  right.  But  the  converse  is  not  necessarily 
true.  There  may  be  duties  without  rights.  In  order  for 
a  duty  to  create  a  right,  it  must  be  a  duty  to  act  or  for- 
bear. Thus,  among  those  duties  which  have  rights  cor- 
responding to  them  do  not  come  the  duties,  if  such  there 


LEGAL  RIGHTS  AND  DUTIES  9 

be,  which,  call  for  an  inward  state  of  mind,  as  distin- 
guished from  external  acts  or  forbearances.  It  is  only 
to  acts  and  forbearances  that  others  have  a  right.  It  may 
be  our  duty  to  love  our  neighbor,  but  he  has  no  right 
to  our  love.  Ainm&wwi,  ou  je  te  iue,  is  an  extravagance. 
The  utmost  to  which  our  neighbor  has  a  right  is  that  we 
should  treat  him  as  if  we  loved  him. 

Again,  a  duty  to  which  a  right  corresponds  must  be  a 
duty  to  act  or  forbear  towards  other  persons.  Among 
the  duties  with  correlative  rights  are  not  included  self- 
regardant  duties,  those  which  have  no  reference  whatever 
to  other  persons.  In  our  complex  state  of  society,  there 
may  be  few  duties  which  are  absolutely  and  solely  self- 
regardant;  but  such  duties  may  be  conceived.  If  a  ship, 
laden  with  Medford  rum,  be  wrecked  on  a  desert  island, 
although  the  owner  be  the  sole  survivor,  and  although 
he  have  no  hope  or  chance  of  rescue,  it  may  yet  be  his 
duty  not  to  pass  his  time  in  drinking  up  the  cargo.  But 
no  one  has  here  any  right. 

Once  more,  in  order  to  give  a  man  a  right,  there 
must  be  a  duty  to  act  or  forbear  in  his  interest.  There 
may  be  a  duty  to  do  an  act  to  a  person  where  we  cannot 
say  that  he  has  a  right  to  have  the  act  done.  Thus,  it 
may  be  the  duty  of  Jack  Ketch  to  hang  Jonathan  Wild, 
but  we  do  not  say  that  Wild  has  a  right  to  be  hanged. 

Excluding  what  ought  to  be  excluded,  we  have,  then, 
this  as  a  definition  of  moral  right:  When  one  is  under 
a  duty  to  act  or  forbear  in  the  interest  of  a  person,  such 
a  person  has  a  right  to  that  act  or  forbearance. 

Another  meaning  given  to  "a  right"  is  to  be  found  ?/ public 
adopted  and  explained  in  Mr.  Holland's  "Elements  of  to  rights 


10     THE  NATURE  AND  SOURCES  OF  THE  LAW 

Jurisprudence,"  *  as  well  as  anywhere.  "What,  then," 
he  says,  "is  'a  legal  right'  ?  But  first,  what  is  a  right 
generally?  It  is  one  man's  capacity  of  influencing  the 
acts  of  another,  by  means,  not  of  his  own  strength,  but  of 
the  opinion  or  the  force  of  society.  When  a  man  is  said 
to  have  a  right  to  do  anything,  or  over  anything,  or  to  be 
treated  in  a  particular  manner,  what  is  meant  is  that 
public  opinion  would  see  him  do  the  act,  or  make  use 
of  the  thing,  or  be  treated  in  that  particular  way,  with 
approbation,  or  at  least  with  acquiescence;  but  would 
reprobate  the  conduct  of  any  one  who  should  prevent  him 
from  doing  the  act,  or  making  use  of  the  thing,  or  should 
fail  to  treat  him  in  that  particular  way." 

But  is  this  approval  by  public  opinion  a  necessary  ele- 
ment in  the  idea  of  a  right?  In  some  of  the  United 
States, — as,  for  example,  in  Texas, — statutes  exempt 
the  property  of  debtors  to  a  very  large  amount  from  being 
taken  for  their  debts,  and  these  statutes,  judging  from 
the  language  of  the  Courts,  meet  with  the  hearty  ap- 
proval of  the  public  opinion  of  the  neighborhood,  as 
designed,  they  say,  "to  cherish  and  support  in  the  bosoms 
of  individuals,  those  feelings  of  sublime  independence 
which  are  so  essential  to  the  maintenance  of  free  insti- 
tutions." 2  Does  this  give  the  Texan  farmer  a  right  not 
to  pay  his  debts?  Does  the  fact  that  he  lives  in  a  com- 
munity where  such  things  are  practised  and  praised  affect 
the  question?  If  a  man  has  to  pass  upon  the  rights  of 
himself  or  of  any  one  else,  it  is  more  than  probable  that 
his  judgment  will  be  affected  by  the  tone  of  the  commu- 
nity in  which  he  lives,  but,  if  he  is  honest,  he  does  not 

1  Jurisprudence  (llthed.)   81. 

*  Franklin    v.    Coffee,    18    Tex.    413,    416. 


LEGAL  RIGHTS  AND  DUTIES  11 

consciously  admit  the  voice  of  public  opinion  as  the  test 
of  the  existence  of  rights.  Public  opinion  is  no  more  an 
essential  element  of  rights  than  it  is  of  morality  itself. 

It  may  be  said  that  all  this  is  a  question  of  nomen- 
clature, and  that  Mr.  Holland  may  give  to  a  word  any 
meaning  he  pleases,  provided  his  usage  is  consistent  with 
'itself.  But  it  is  submitted  that,  while  the  need  of  scien- 
tific precision  sometimes  requires  a  writer  to  select  and 
adhere  to  one  of  the  meanings  of  a  word  or  phrase  be- 
tween which  popular  speech  varies,  he  should  depart  from 
ordinary  usage  as  little  as  possible.  The  failure  to  observe 
this  rule  has  two  evil  results.  In  the  first  place,  the 
writer  is  more  likely  to  be  misunderstood  by  his  readers, 
and  secondly,  his  own  attention  will  sometimes  flag,  he 
will  unconsciously  substitute  the  common  for  his  own 
arbitrary  meaning,  and  the  ambiguous  term  will  bring  his 
argument  to  grief. 

It  is  undoubtedly  desirable  to  have  a  term  to  express 
what  a  man  has  by  virtue  of  public  opinion  concerning 
the  duty  of  others  to  act  or  forbear  in  his  interest,  but 
it  had  best  not  be  "rights"  simply ;  "positive  moral  rights," 
though  not  entirely  unobjectionable,  seems  as  unobjec- 
tionable as  any  that  has  been  proposed. 

While  on  this  matter  of  nomenclature,  it  may  be  re- 
marked that  although  "right"  and  "duty"  are  used  as 
correlative  terms,  and  in  common  parlance,  as  well  as  in 
scientific  terminology,  there  can  be  no  right  where  there 
is  no  duty,  yet  "right"  seems  to  have  had  its  origin  in 
the  Law,  and  "duty"  in  ethics ;  that,  in  spite  of  each  term 
being  now  domesticated  in  the  domain  of  the  other,  so 
that  they  have  paired  in  both  places,  the  expression  "moral 
right"  does  not  come  as  trippingly  from  the  tongue  as 


12 


Legal 

rights  and 
duties 


Legal 
and  moral 
rights 


"legal  right,"  and,  on  the  other  hand,  "legal  duty"  strikes 
the  ear  with  a  less  familiar  sound  than  "moral  duty" ; 
and  that  the  ideas  first  evoked  by  the  words  "right"  and 
"duty"  are  of  "legal  right"  and  of  "moral  duty,"  re- 
spectively. 

So  much  as  to  rights  and  duties  generally:  now  for 
legal  rights  and  duties.  Human  society  is  organized  for 
the  protection  and  advancement  of  human  interests.  The 
object  of  its  organization  is  to  insure  the  doing  of  certain 
things  which  individuals  could  not  do,  and  to  protect 
individuals  in  the  accomplishment  of  their  wishes  to 
an  extent  to  which  they  could  not  protect  themselves. 
Sometimes  the  real  purpose  of  organization  is  to  secure  the 
interests  of  a  very  limited  number  of  persons.  But  yet, 
such  are  the  blessings  of  order,  that  any  political  organ- 
ization, however  small  the  number  of  persons  intended  to 
be  benefited  by  it,  is  better  for  the  rest  than  anarchy. 

To  accomplish  its  purposes,  the  chief  means  employed 
by  an  organized  society  is  to  compel  individuals  to  do  or 
to  forbear  from  doing  particular  things.  Sometimes  the 
society  puts  this  compulsion  in  force  of  its  own  motion; 
and  sometimes  it  puts  it  in  force  only  on  the  motion  of 
the  individuals  who  are  interested  in  having  it  exercised. 

The  rights  correlative  to  those  duties  which  the  society 
will  enforce  of  its  own  motion  are  the  legal  rights  of  that 
society.  The  rights  correlative  to  those  duties  which  the 
society  will  enforce  on  the  motion  of  an  individual  are 
that  individual's  legal  rights.  The  acts  and  forbearances 
which  an  organized  society  will  enforce  are  the  legal  duties 
of  the  persons  whose  acts  and  forbearances  are  enforced. 

The  poverty  of  our  nomenclature,  on  which  I  have 


LEGAL  RIGHTS  AND  DUTIES  13 

already  remarked,,  has  worked  a  confusion  in  these  funda- 
mental ideas.  The  word  "duty"  has  been  used  so  pre- 
eminently in  the  sphere  of  morality  that  there  is  at- 
tached to  it,  and,  in  a  less  degree,  to  the  correlative  word 
"right,"  the  flavor  of  "ought,"  of  right  as  opposed  to 
wrong,  which  is  difficult  to  remove  even  by  prefixing  the 
word  "legal" ;  and  many  persons  feel  a  natural  repulsion 
from  the  statement  that,  "It  is  a  legal  duty  to  obey  a 
statute  commanding  an  immoral  act." 

And  yet  if  legal  duties  are  the  acts  and  forbearances 
which  an  organized  society  will  compel,  it  is  obvious 
that  many  very  immoral  acts  and  forbearances  have  been 
legal  duties. 

But  some  writers,  while  admitting  this,  are  led  by  the 
ethical  atmosphere  which  attends  "right"  and  "duty"  to 
connect  law  with  ethics,  not  in  a  legitimate  but  in  an 
illegitimate  way.  They  recognize  "that  a  positive  right 
is  that  which  is  regarded  and  treated  as  a  right  in  some 
system  established  for  the  maintenance  of  rights,"  and 
that  this  positive  right  may  differ  from  what  they  call 
right  in  fact,  or  natural  right,  but  they  insist  that  the 
function  of  organized  society  is  not  to  create  rights,  but 
to  declare  them,  and  that  any  distinction  between  legal 
duties  and  rights,  on  the  one  hand,  and  duties  and  rights 
in  fact  is  due  to  the  imperfection  with  which  society  per- 
forms its  functions;  in  other  words,  that  the  essence  of 
legal  duties  is  that  they  are  moral  duties  as  declared  by 
society,  and  not  simply  acts  and  forbearances  which  society 
will  enforce;  that  is,  although  they  do  not  deny  that 
this  last  is  a  correct  description,  they  say  that  it  does  not 
bring  out  the  true  nature  of  legal  duties. 

Now,  it  may  be  granted  that  an  organized  society,  in 


'  14     THE  NATURE  AND  SOURCES  OF  THE  LAW 

acting  through  its  legislative  or  judicial  organs,  is  gen- 
erally purporting  to  act  in  accordance  with  morality,  but, 
on  the  other  hand,  many  statutes  are  passed  without  any 
question  of  morality  occurring  to  the  legislators,  and  the 
real  motives  of  many  legislative  acts  have  been  undoubt- 
edly selfish  and  immoral. 

Let  us  take  a  case  which  will  serve  as  a  test.  Suppose 
some  autocrat  of  absolute  power,  cynical,  utterly  selfish 
or  capricious, — a  Caligula  or  a  Heliogabalus, — should 
enact  as  a  whim,  that  a  favored  individual  should 
have  certain  powers  of  extortion  over  other  citizens.  If 
remonstrated  with  on  the  immorality  of  his  edict — "Yes," 
he  would  say,  "as  immoral  as  you  please,  but  what  do  I 
care  for  morality  ?  It  is  my  will ;  can't  I  play  the  fool  if 
I  wish  ?  What  are  you  going  to  do  about  it  ?"  Suppose 
the  judges  and  officers  carried  out  the  edict,  and  the  people 
obeyed.  The  favorite  would  have  had  his  legal  rights; 
his  victims  would  have  been  under  a  legal  duty  to  obey. 
The  edict  did  not  declare  moral  rights,  it  did  not  purport 
to  declare  moral  rights,  it  was  issued  in  defiance  of 
morality;  yet,  because  it  was  a  rule  which  was  enforced 
by  the  organized  society,  it  created  legal  duties  and  legal 
rights. 

It  may  b©  well  to  be  reminded,  by  the  resemblance  be- 
tween names  given  to  legal  and  moral  relations,  that 
organized  societies  establish  many  legal  duties  with  a 
moral  purpose,  and  that  they  ought  not  to  establish  legal 
duties  which  are  inconsistent  with  good  morals;  but  it  is 
not  well  to  affirm,  simply  on  similarity  in  name,  that  the 
essence  of  legal  duties  is  a  thing  which  they  sometimes 
possess  and  sometimes  do  not. 

The  incorrect  process  of  reasoning  indicated  shows  that 


LEGAL  RIGHTS  AND  DUTIES  15 

it  is  unfortunate  that  we  have  no  words  for  those  ideas 
commonly  expressed  by  "legal  duties"  and  "legal  rights" 
which  might  be  without  the  ethical  coloring  which  it 
requires  an  effort  of  attention  to  dissociate  from  "duties" 
and  "rights"  however  qualified ;  but  it  is  a  question  hardly 
of  the  importance  given  to  it  by  Mr.  George  H.  Smith 
in  his  treatise  on  "The  Elements  of  Right  and  of  the 
Law,"  1  the  purpose  of  which  is  a  strenuous  polemic 
against  the  use  of  the  expression  "legal  right."  The  author 
insists  that  there  is  but  one  kind  of  right,  that  "moral 
right  is  a  tautology,  that  a  right  connotes  the  idea  of 
moral  Tightness,"  and  that  for  "legal  right"  should  be 
substituted  "action"  or  "legal  power."  In  all  the  other 
European  languages,  as  well  as  the  English,  the  term 
used  to  express  what  Mr.  Smith  calls  "action"  or  "legal 
power"  is  "right,"  or  its  equivalent,  viz.  recht,  droit, 
diriiio,  derecho,  etc.,  and  the  general  usage  is  too  firmly 
fixed  to  be  changed  except  by  general  consent. 

But  though  it  is  unadvisable  to  banish  the  term  "legal  -Legal 
right"  from  the  vocabulary  of  Jurisprudence,  it  is  not, 
perhaps,  entirely  the  same  with  "legal  duty."  Though 
the  noun  substantive  "a  right"  is  now  become  a  word 
familiar  in  the  domain  of  ethics,  it  seems,  as  above  re- 
marked, to  have  been  originally  a  term  of  the  Law,2  but, 
on  the  other  hand,  the  word  "duty"  had  its  beginning  in 
the  sphere  of  morality  and  has  never  been  able  to  shake 
off  the  effect  of  its  surroundings,  and  while  "legal  right" 
is  a  phrase  more  familiar  than  "moral  right,"  "legal 
duty"  is  a  forced  expression. 

On  the  whole,  perhaps  the  best  term  to  express  the 

J2d   ed.    Chicago,    1887. 
aP.  11,  ante. 


16     THE  NATURE  AND  SOURCES  OF  THE  LAW 

correlative  of  "legal  right"  would  be  not  "legal  duty," 
but  "legal  obligation."  "Obligation"  has  a  far  weaker 
ethical  flavor  than  "duty,"  carrying  with  it  the  idea  of 
external  and  not  of  internal  compulsion.  And  yet  it 
should  be  remembered  that  "obligatio"  in  the  Civil  Law 
is  the  regular  technical  term  for  the  correlative,  not  of 
jura  generally,  but  of  a  particular  class,  jura  in  per- 
sonam;1  that,  although  such  a  usage  cannot  be  said  to  have 
yet  established  itself  in  the  nomenclature  of  the  Com- 
mon Law,  it  is  desirable  to  have  a  word  equivalent  to 
the  Roman  obligatio;  and  that  "obligation"  is  the  most 
natural  to  select.  In  any  attempt,  therefore,  to  jwpular- 
ize  the  conceptions  of  Jurisprudence  to  lay  readers,  it  may 
be  best  to  speak  of  "legal  obligations,"  there  being  with 
them  little  danger  of  confusing  "obligation"  with  the 
obligatio  of  the  Roman  Law;  but  in  books  for  more  in- 
structed readers  there  may  be  less  ambiguity  in  using  the 
expression  "legal  duty,"  though,  as  has  been  shown,  such 
use  has  its  dangers. 

Although  usage,  jus  et  norma  loquendi,  allows,  indeed 
requires,  us  to  employ  "legal  rights"  if  not  "legal  duties," 
without  any  connotation  of  moral  Tightness,  the  same 
final  judge  condemns  the  use  of  "just"  without  that  con- 
notation. Hobbes,  indeed,  affirms  that  "no  law  can  be 
unjust,"  2  and  Austin,  defending  him,3  says :  "By  the 
epithet  just,  we  meant  that  a  given  object,  to  which  we 
apply  the  epithet,  accords  with  a  given  law  to  which  we 
refer  it  as  to  a  test.  And  as  that  which  is  just  conforms 

1  Rights  against  a  person,  as  distinguished  from  rights  of  owner- 
ship. 

""Leviathan,"  pt.  2,  ch.  30,  English  Works,  vol.  3,  p.   335. 
'•1  Jur.  (4th  ed.)  276,  note. 


LEGAL  RIGHTS  AND  DUTIES  17 

to  a  determinate  law,  justice  is  the  conformity  of  a  given 
object  to  the  same  or  a  similar  measure."  If  by  "we"  are 
meant  Austin  and  Hobbes,  the  statement  may  be  correct, 
but  such  is  not  the  common  usage.  In  that  usage,  justice 
is  indissolubly  connected  with  morality.  A  debtor  in 
whose  favor  the  period  of  time  prescribed  by  the  statute 
of  limitations  has  run  is  under  no  "legal  duty"  to  pay, 
his  creditor  has  no  "legal  right"  against  him,  but  if  the 
debtor  refuses  to  pay,  his  conduct  would  not  be  called 
"just." 

Professor  Sidgwick  puts  the  matter  well :  "And  hence 
has  arisen  a  crude  definition  of  Justice,  which  identifies 
just  conduct  with  conduct  in  conformity  with  Law.  But 
reflection  shows  that  we  do  not  mean  by  Justice,  merely 
the  habit  of  Law-observance.  For,  first,  we  do  not  al- 
ways call  the  violators  of  law  unjust,  but  only  of  some 
laws:  not,  for  example,  duellists  or  gamblers.  And 
secondly,  we  continually  perceive  that  Law  does  not  com- 
pletely realize  Justice:  our  notion  of  Justice  furnishes 
a  standard  with  which  we  compare  actual  laws,  and  pro- 
nounce them  just  or  unjust.  And,  thirdly,  there  is  a 
part  of  just  conduct  which  lies  outside  the  sphere  of  Law : 
for  example,  we  think  that  a  father  may  be  just  or  unjust 
to  his  children  in  matters  where  the  Law  leaves  (and 
ought  to  leave)  him  free."  1 

If  it  is  my  interest  to  receive  a  hundred  dollars  from  Protected 

interests 

Balbus,  or  if  it  is  my  interest  to  go  out  of  a  room,  and  ana  right* 
if  organized  society  imposes  a  duty  upon  Balbus  to  pay  me, 
or  imposes  a  duty  upon  everybody  not  to  interfere  with 
my  leaving  the  room,  I  have  a  legally  protected  interest 

1  Sidgwick,  Methods  of  Ethics,  Book  3,  c.  5,  §  1.  But  see  J.  S. 
Mill,  Essay  on  Nature,  in  Essays  on  Religion,  p.  52. 


18     THE  NATURE  AND  SOURCES  OF  THE  LAW 

and  I  have  a  legal  right.  What  is  the  legal  right  which 
I  have?  The  full  definition  of  a  man's  legal  right  is  this: 
That  power  which  he  has  to  make  a  person  or  persons 
do  or  refrain  from  doing  a  certain  act  or  certain  acts, 
so  far  as  the  power  arises  from  society  imposing  a  legal 
duty  upon  a  person  or  persons.1  Therefore,  my  legal  right 
in  the  cases  supposed  is  the  power  to  compel  Balbus  to 
pay  me,  or  the  power  to  prevent  persons  from  interfer- 
ing with  my  leaving  the  room. 

Ihering,  in  his  "Spirit  of  the  Roman  Law,"  defined 
rights  as  legally  protected  interests.  This  definition  was 
received  in  Germany  with  a  sort  of  enthusiasm,  and,  in- 
deed, it  was  a  great  advance  on  the  nonsense  that  had  been 
talked  upon  the  subject,  but  it  has  been  strenuously  at- 
tacked by  many  German  jurists  of  whom  Thon  is  the 
protagonist,  and  there  is  an  extensive  literature  on  the 
subject.2  Ihering's  adversaries  seem  on  this  point  to  have 
the  better  of  the  argument.  The  right  is  not  the  inter- 
est itself;  it  is  the  means  by  which  enjoyment  of  the 
interest  is  secured.  It  is  the  power  to  get  the  money 
from  Balbus,  or  the  power  to  leave  the  room,  which  is 
the  legal  right,  not  the  payment  of  the  money  or  the  leav- 
ing the  room.  Common  usage,  however,  permits  us  to 
describe  this  right  as  the  right  to  be  paid,  or  the  right 
to  leave  the  room,  and  this  usage  does  not  seem  likely  to 
lead  to  any  evil  results. 

By  the  interests  of  a  man  is  meant  the  things  which 
he  may  desire.  I  shall  not  attempt  to  enumerate  or 
classify  the  objects  of  human  desire.  The  object  may 

1  I.e.  compelling  at  his  instance  such  persons  to  do  such  acts. 
See  p.  12,  ante. 

1 A  convenient  reference  to  this  literature  will  be  found  in  1  Wind- 
scheid,  Pandekten,  §  37. 


LEGAL  RIGHTS  AND  DUTIES  19 

be  the  ownership  or  possession  of  a  corporeal  thing,  as  a 
book;  it  may  be  an  act,  as  eating  a  dinner;  it  may  be  a 
relation,  as  marriage;  and  the  desire  may  be  a  foolish  or 
hurtful  one.  The  eating  of  shrimp  salad  is  an  interest  of 
mine,  and,  if  I  can  pay  for  it,  the  law  will  protect  that 
interest,  and  it  is,  therefore,  a  right  of  mine  to  eat  shrimp 
salad  which  I  have  paid  for,  although  I  know  that  shrimp 
salad  always  gives  me  the  colic. 

The  legal  rights  of  a  man  are  the  rights  which  are  ways  of 
exercisable  on  his  motion.1  A  man  has,  therefore,  no  interests e 
legal  right  as  to  those  interests  in  the  realizing  of  which 
he  is  protected  only  by  other  people  exercising  their 
rights.  The  fact  that  the  State  can  punish  the  burglar 
who  breaks  into  my  house  does  not  give  me  any  right 
not  to  have  my  house  broken  into.  Not  that  I  am  without 
a  right  not  to  have  my  house  broken  into.  The  law  can 
protect  my  interest  not  to  have  a  thing  done  in  several 
ways:  as  in  the  first  place,  by  allowing  me  to  withstand 
the  act  by  force ;  or  secondly,  by  allowing  me  to  limit  the 
freedom  of  the  person  who  wishes  to  do  the  act  by  placing 
obstacles  in  his  way ;  or  thirdly,  by  appealing  to  the  courts 
to  punish  such  person.  The  law  may  deny  to  a  man 
this  third  mode  of  protecting  his  interest,  but  if  it  allows 
him  the  first  and  second,  or  either  of  them,  he  has  a  legal 
right.  A  system  of  law  may,  as  the  Common  Law  does, 
merge  the  private  injury  in  the  crime,  and  refuse  the 
householder  an  action  against  the  burglar,  but  so  long  as 
he  can  withstand  the  burglar,  even  to  killing,  and  can 
draw  bolts  and  bars  to  keep  him  out,  he  has  the  legal  right 
not  to  have  his  house  entered.  If,  when  I  heard  a  burglar 
lifting  the  latch  of  my  door,  the  State  allowed  me  to  use 

1See  p.  12,  ante. 


20     THE  NATURE  AND  SOURCES  OF  THE  LAW 

neither  threats  nor  force  to  compel  him  to  desist,  and  if 
the  State  also  forbade  me  to  turn  any  lock  or  push  any 
bolt,  or  in  any  other  way  interfere  to  keep  him  on  the 
outside,  and  if  the  only  thing  to  prevent  his  coming  in 
was  the  fact  that  the  State  could,  if  it  would,  hang  him 
or  send  him  to  prison,  then  I  should  have  no  legal  right 
not  to  have  my  house  entered,  whatever  right  the  State 
might  have. 

So  the  interests  of  brute  animals  may  have  legal  pro- 
tection. Very  often,  indeed,  acts  commanded  or  for- 
bidden towards  animals  are  not  commanded  or  forbidden 
for  the  sake  of  the  animals,  but  for  the  sake  of  men ;  but 
certain  acts  of  cruelty,  for  instance,  towards  beasts,  may 
be  forbidden,  at  least  conceivably,  for  the  sake  of  the 
creatures  themselves.  Yet  beasts  have  no  legal  rights, 
because  it  is  not  on  their  motion  that  this  protection  is 
called  forth.1 

The  protection  which  society  gives  to  a  man's  interests 
is  either  direct  or  indirect.  Sometimes  it  protects  them 
directly,  as  when  its  courts  compel  a  man  who  is  threat- 
ening to  flood  the  land  of  a  proprietor  upstream  to  take 
down  his  dam ;  sometimes  indirectly,  as  by  giving  a  man 
Right  a  right  to  have  a  wrong-doer  compelled  to  make  compen- 

defence  sation.  And  the  right  to  ask  the  courts  for  aid  is  not 
always  a  right  to  sue  in  them,  but  is  often  a  right  to 
be  protected  against  suits  brought  by  others.  For  instance, 
under  a  statute  of  limitations,  if  a  debt  remains  unpaid 
for  six  years,  the  creditor  cannot  compel  the  debtor  to  pay 
it ;  that  is,  the  debtor  has  a  right  to  interpose  the  defence 
of  the  statute  and  thereby  call  upon  the  court  to  refuse 
its  assistance  to  enforce  the  creditor's  demand.  So  again, 
1See  p.  43,  post. 


LEGAL  RIGHTS  AND  DUTIES  21 

a  householder  has  the  right  to  eject  by  force  a  trespasser 
from  his  "castle."  That  is,  if  sued  by  the  trespasser  for 
assault,  he  can  call  upon  the  court  to  refuse  the  plaintiff 
its  help.  In  other  words,  a  man's  legal  rights  include 
not  only  the  power  effectually  to  call  for  aid  from  an 
organized  society  against  others,  but  also  the  power  to 
call  effectually  upon  the  society  to  abstain  from  aiding 
others. 

We  may  say  that  society  in  these  cases  limits  or  quali- 
fies the  plaintiff's  rights,  or  that  it  gives  the  defendant 
a  right  to  a  defence.  The  result  is  the  same.  To  speak 
of  a  right  to  a  defence  is  perhaps  not  strictly  accurate; 
for  it  is  hard  to  find  a  correlative  legal  duty  not  to  sue. 
But  the  phrase  is  customary,  and  lends  itself  to  the  con- 
venient arrangement  of  the  Law.  The  Law  includes  the 
rules  which  the  courts  apply  for  the  determination  of  the 
circumstances  under  which  they  will  refuse  to  enforce 
legal  rights  which  would  otherwise  exist;  or,  in  other 
words,  the  circumstances  under  which  they  will  recognize 
in  the  defendant  a  legal  right  to  a  defence. 

Let  us  dwell  for  a  moment  more  on  the  nature  of  the 
protection  which  society  affords  to  a  man's  interests.  In 
the  first  place,  it  may  allow  him  to  protect  himself;  this 
is  self-help.  Secondly,  it  may  allow  him  to  appeal  to 
the  courts  to  protect  him,  as  by  an  injunction  forbidding 
the  defendant  to  do  certain  acts.  Thirdly,  it  may  allow 
him  to  appeal  to  the  courts  for  compensation  for  injuries. 
In  all  three  of  these  cases,  the  actual  volition  of  the 
man  himself  is  necessary.  He  must  put  up  his  own  fists; 
he  must  bring  his  suit  for  an  injunction  or  for  damages 
in  the  courts.  The  State  will  not  double  up  his  fists  for 
him,  nor  will  it  bring  a  suit  for  h;m  in  the  courts.  The 


22     THE  NATURE  AND  SOURCES  OF  THE  LAW 

right  to  these  modes  of  protection  is,  therefore,  his  right, 
interven-          But  there  is  a  fourth  method  in  which  the  State  pro- 

tion  of  ,       .      '  .  .      r     , 

administra-  tects  a  man  s  interests,   and  that  is  the  prevention  of 

tlve  officers  ' 

injury  to  them,  not  by  the  intervention  of  the  courts,  but 
by  the  intervention  of  administrative  officers.  My  inter- 
est not  to  have  my  windows  broken  is  protected  not  only 
by  my  power  of  appealing  to  the  courts  to  prevent  or 
compensate  for  the  breaking,  but  also  by  the  presence  of 
the  policeman  on  his  beat.  In  this  case  you  may  say  there 
is  no  actual  volition  on  my  part.  I  do  not  know  that  the 
integrity  of  my  windows  is  threatened.  Yet  the  stopping 
of  the  window  breaking  is  really  dependent  upon  my  will, 
for  if  I  tell  the  police  to  let  the  boys  go  ahead  and  break 
my  windows,  it  will  cease  to  interfere.  What  really  hap- 
pens in  this  case  is  that  the  State  assumes  a  wish  on  my 
part  (an  assumption  amply  fortified  by  the  ordinary  attri- 
butes of  human  nature)  that  my  windows  should  not  be 
broken.  Indeed,  after  all,  in  this  fourth  class  of  cases  is 
there  not  an  actual  volition?  Every  man  undoubtedly 
actually  wishes  that  his  property  should  be  protected,  and 
also  that  the  State,  through  its  administrative  officers, 
should  protect  it,  so  that,  even  in  his  case,  there  may  be 
said  to  be  an  actual  volition  and  that,  therefore,  the  man 
has  a  right.  It  should  be  noted  that  the  State  may,  and 
probably  often  does,  allow  a  man  to  commit  to  the  State 
a  larger  power  to  protect  his  interests  than  it  would  allow 
him  to  exercise  in  his  own  person. 

There  is  a  fifth  method  by  which  the  State  protects  a 
man's  interests,  and  that  is,  by  declaring  that  it  will 
punish  criminally  acts  against  certain  interests  of  in- 
dividuals, and  by  punishing  accordingly.  The  dread  of 
punishment  undoubtedly  protects  the  interests  of  the  in- 


LEGAL  RIGHTS  AND  DUTIES  23 

dividuals,  but  in  this  protection  the  volition  of  the  indi- 
viduals protected  has  no  place,  and  it  cannot  be  said  that 
they  have  any  right  to  this  form  of  protection.1 

To  give  effect  to  a  man's  right,  an  exercise  of  free  will  Free  win 

,.  ..  T  ,....,    and  legal 

on  his  part  is  necessary.  No  legal  compulsion  is  laid  rights 
on  any  one  to  enforce  his  right  as  such.  It  is  true  that 
one  is  sometimes  under  a  legal  duty  to  exercise  a  right, 
but  this  is  a  duty  towards  B  to  enforce  a  right  against 
A,  as,  for  instance,  in  many  cases  arising  under  contracts 
of  indemnity.2  But  the  exercise  of  a  legal  right  against 
a  person  is  never  a  legal  duty  owed  to  that  person.  It  is 
of  the  nature  of  a  man's  right  as  such,  that  to  seek  or  to 
abstain  from  seeking  the  aid  of  society  for  the  protection 
of  his  interest  is  a  matter  of  his  own  free  will. 

And  this  leads  me  to  speak  of  a  notion  of  some  writers 
that  the  object  of  organized  society  in  creating  rights 
should  be  the  protection  of  the  freedom  of  the  will. 
Whether  this  notion,  as  is  sometimes  supposed,  originated 
with  Hegel,3  is  a  question  I  do  not  feel  competent  to 
decide.  I  have  no  claim  to  be  the  one  man  whom  Hegel 
said  understood  his  philosophy.  But,  with  whomever 
the  notion  originated,  I  conceive  it  to  be  erroneous.  It 
might  as  well  be  said  that  the  object  of  creating  rights 
is  to  restrain  the  freedom  of  the  will.  I  wish  to  have  a 
beautiful  watch,  but  society  restrains  the  exercise  of  my 

1  In  some  countries,  though  this  is,  I  think,  not  common  in 
the  United  States,  the  bringing  of  certain  criminal  prosecutions  is 
dependent  upon  the  will  of  the  man  injured.  In  such  a  case  the 
injured  person  has  a  right  to  have  the  wrong-doer  criminally 
punished.  The  form  of  the  enforcement  of  the  right  is  a  mere 
matter  of  machinery.  Such  was  the  old  appeal  of  death  in  Eng- 
land. See  4  Bl.  Com.  312-316. 

*  B  insures  X  against  loss  of  certain  goods ;  and  A  negligently 
destroys  the  goods.  X  is  under  a  duty  to  sue  A  for  the  value  of 
the  goods  in  order  to  relieve  B  of  the  payment  of  the  value. 

'Philosophic  des  Rechts,  §§4,  29,  et  passim. 


24     THE  NATURE  AND  SOURCES  OF  THE  LAW 

will,  because  the  watch  belongs  to  you.  I  do  not  want 
to  pay  you  a  hundred  dollars,  but  society  compels  me  to 
do  it,  because  I  have  contracted  to  pay  it.  I  wish  to  put 
you  out  of  the  way  quietly,  but  society  will  not  allow 
me  to  poison  you.  In  truth,  neither  proposition  is  cor- 
rect. 

Rights  should  be  created  neither  solely  to  protect  the 
freedom  of  the  will  nor  solely  to  restrain  it,  but  to 
establish  and  maintain  those  relations  among  men  which 
are  most  for  the  advantage  of  society  or  of  its  members. 
This  is  best  obtained  sometimes  by  permitting  the  will 
to  be  exercised,  sometimes  by  restraining  it.  If  one 
chooses  to  say  that  the  ideal  at  which  an  organized  so- 
ciety should  aim  in  creating  rights  is  human  perfection, 
I  do  not  know  that  there  is  any  objection  to  it. 

Free  will          An  exercise  of  the  will  is  necessary  to  give  effect  to 
duties  legal  rights.    What  connection  with  will  have  legal  duties  ? 

The  legal  duties  of  a  person  are  those  acts  and  forbear- 
ances which  an  organized  society  will  enforce.  It  is 
commonly  said  that  legal  duties  are  those  acts  and  for- 
bearances which  a  society  commands.  What  is  a  "com- 
mand," as  the  word  is  used  by  writers  on  Jurisprudence  ? 
Its  meaning  is  well  explained  by  Austin.1  "If  you  express 
or  intimate  a  wish  that  I  shall  do  or  forbear  from  some 
act,  and  if  you  will  visit  me  with  an  evil  in  case  I  comply 
not  with  your  wish,  the  expression  or  intimation  of  your 
wish  is  a  command.  A  command  is  distinguished  from 
other  significations  of  desire,  not  by  the  style  in  which 
the  desire  is  signified,  but  by  the  power  and  the  purpose 
of  the  party  commanding  to  inflict  an  evil  or  pain  in  case 

»1  Jur.  (4th  ed.)  91. 


LEGAL  RIGHTS  AND  DUTIES  25 

the  desire  be  disregarded."  This  conditional  evil  is  called 
by  Austin  the  sanction  of  the  command.1 

In  order  to  create  a  legal  duty,  it  is  not  necessary  that 
the  person  subject  to  the  duty  should  have  the  will  to  do 
it.  He  may  have  the  will  not  to  do  it;  it  still  remains 
his  legal  duty.  But  must  he  have  the  potentiality  of 
obeying  it  ?  The  potential  exercise  of  will  is  not  neces- 
sary for  the  creation  of  a  legal  duty.  I  obtain  a  judg- 
ment against  Thomas  Dusenbury  for  a  thousand  dollars. 
Dusenbury  may  not  have  five  dollars  in  the  world;  still 
he  is  under  a  legal  duty  to  pay  the  thousand  dollars. 
Further,  must  he  know  of  the  command?  This  is  not 
necessary.  If  there  is  a  statute  in  a  State  forbidding  the 
sale  of  cigarettes,  a  man  who  sells  a  cigarette  has  violated 
a  legal  duty,  although  he  does  not  know  of  the  statute,  and 
even  although  he  has  just  arrived  from  Lithuania,  and 
cannot  understand  the  language  in  which  the  statute  is 
written. 

A  man,  therefore,  may  be  bound  by  a  legal  duty  to 
do  an  act,  although  he  cannot  possibly  do  it,  and  although 
he  does  not  know  that  he  has  been  ordered  to  do  it.  The 
exercise  of  his  will,  actual  or  potential,  is  not  necessarily 
involved  in  the  creation  of  a  legal  duty  to  which  he  is 
subject.  This  emphasizes  the  point  to  which  I  have  al- 
ready referred,  the  infelicity  of  the  term  "legal  duty" 
to  signify  the  burden  imposed  correlative  to  legal  rights.2 

That  a  right  should  be  given  effect  there  must  be  an 

*To  attribute  a  desire  to  society  that  the  persons  comprising  it 
should  do  certain  acts,  is  perhaps  to  make  use  of  an  unnecessary 
fiction.  The  legal  duties  of  a  person  may  be  defined  simply  as  those 
acts  or  forbearances,  which  if  he  does  not  do  or  forbear,  society 
will  inflict  an  evil  upon  him. 

•P.  15,  ante. 


26     THE  NATURE  AND  SOURCES  OF  THE  LAW 

exercise  of  will  by  the  owner  of  the  right.  But  an  idiot 
has  no  will;  a  fictitious  body,  like  a  corporation,  has  no 
will.  Has  an  idiot,  then,  no  legal  rights  ?  Has  a  corpora- 
tion no  legal  rights  ?  The  way  the  Law  meets  these  ques- 
tions I  will  try  to  show  in  the  next  chapter,  in  which  I 
propose  to  deal  with  legal  persons,  as  they  have  been 
recognized  in  different  systems  of  Law. 


CHAPTEE  II 

LEGAL    PERSONS 

IN  books  of  the  Law,  as  in  other  books,  and  in  com-  The  term 
mon  speech,  "person"  is  often  used  as  meaning  a  human 
being,  but  the  technical  legal  meaning  of  a  "person"  is 
a  subject  of  legal  rights  and  duties. 

One  who  has  rights  but  not  duties,  or  who  has  duties 
but  no  rights,  is,  I  suppose,  a  person.  An  instance  which 
would  commonly  be  given  of  the  former  is  the  King  of 
England;  of  the  latter,  a  slave.  Whether  in  truth  the 
King  of  England  has  no  legal  duties,  or  a  slave  no  legal 
rights,  may  not  be  entirely  clear.  I  will  not  stop  to  dis- 
cuss the  question.  But  if  there  is  any  one  who  has  rights 
though  no  duties,  or  duties  though  no  rights,  he  is,  I  take 
it,  a  person  in  the  eye  of  the  Law. 

As  I  showed  at  the  end  of  the  first  chapter,  a  legal  duty 
does  not  imply  any  exercise  of  will  on  the  part  of  the 
one  subject  to  the  duty,  and,  therefore,  for  the  existence 
of  a  legal  duty,  the  person  bound  need  not  have  a  will; 
but  in  order  that  a  legal  right  be  exercised,  a  will  is 
necessary,  and,  therefore,  so  far  as  the  exercise  of  legal 
rights  is  concerned,  a  person  must  have  a  will. 

In  various  systems  of  Law  different  kinds  of  persons 
are  recognized.  They  may  be  classified  thus :  (I)  Normal 
human  beings;  (II)  abnormal  human  beings,  such  as 
idiots;  (III)  supernatural  beings;  (IV)  animals;  (V) 

27 


28  THE  NATURE  AND  SOURCES  OF  THE  LAW 

inanimate  objects,  such  as  ships;  (VI)  juristic  persons, 
such  as  corporations.  Some  of  these  persons,  such  as 
idiots,  ships,  and  corporations,  have  no  real  will.  How 
are  we  to  deal  with  them?  That  is  the  most  difficult 
question  in  the  whole  domain  of  Jurisprudence.  Let  us 
take  these  classes  in  order. 

(I)  In  the  case  of  normal  human  beings  we  are  not 
troubled  with  any  question  as  to  the  actual  presence  of  a 
will.  The  normal  man  or  woman  has  a  will.  Indeed, 
some  German  writers  make  will  of  the  essence  of  per- 
sonality. Thus,  Hegel  defines  personality  as  the  sub- 
jective possibility  of  a  legal  will.1  So  Zitelmann:  "Per- 
sonality ...  is  the  legal  capacity  of  will.  The  bodili- 
ness  (Leiblichkeit)  of  men,  is  for  their  personality,  a 
wholly  irrelevant  attribute."  2  And  again,  Meurer :  "The 
juristic  conception  of  the  juristic  person  exhausts  itself 
in  the  will,  and  the  so-called  physical  persons  are  for  the 
law  only  juristic  persons  with  a  physical  superftuum"  3 

On  the  other  hand,  Karlowa,4  to  whom  I  am  indebted 
for  the  foregoing  quotations,  says:  "The  body  is  not 
merely  the  house  in  which  the  human  personality  dwells ; 
it  is,  together  with  the  soul,  which  now  for  this  life  is 
inseparably  bound  with  it,  the  personality.  So,  not  only 
as  a  being  which  has  the  possibility  of  willing,  but  as  a 
being  which  can  have  manifold  bodily  and  spiritual  needs 
and  interests,  as  a  human  centre  of  interest,  is  a  man  a 
person." 

It  is  this  last  definition  which  American  and  English 
jurists  impliedly,  if  not  expressly,  adopt  as  the  true  defini- 

'See   Philosophic   des    Rechts,    §§    34-39. 
'Begriff  der  juristischen  Personen,  p.  68. 
•Begriff  der  heiligen  Sachen,  §   10,  p.  74. 
«15   Griinhut,   Zeitschr.   381,  383. 


LEGAL  PERSONS  29 

tion  of  a  person.  It  is  that  which  I  shall  accept.  Juris- 
prudence, in  my  judgment,  need  not  vex  itself  about  the 
"abysmal  depths  of  personality."  It  can  assume  that  a 
man  is  a  real  indivisible  entity  with  body  and  soul;  it 
need  not  busy  itself  with  asking  whether  a  man  be  any- 
thing more  than  a  phenomenon,  or  at  best,  merely  a  suc- 
cession of  states  of  consciousness.  It  can  take  him  as  a 
reality  and  work  with  him,  as  geometry  works  with  points, 
lines  and  planes. 

It  should  be  observed,  before  leaving  this  class  of  nor- 
mal human  beings,  that  they  can  exercise  their  rights 
through  agents,  such  as  servants,  bailiffs,  or  attorneys, 
and  they  can  delegate  to  their  agents  the  decision  of  the 
question  whether  the  rights  of  the  principals  shall  be 
exercised  or  not.  But  there  is  no  difficulty  here;  the 
original  spring  is  a  real  exercise  of  will  by  the  owner  of 
the  right. 

(II)  Some  human  beings  have  no  will;  such  are  new-  Abnormal 
born  babies  and  idiots.  Perhaps  it  is  not  correct  to  say 
that  they  are  absolutely  without  wills,  but  their  poten- 
tiality of  will  is  so  limited  that  it  may  be  neglected.  Yet, 
though  without  wills,  new-born  babies  and  idiots  have 
rights. 

But,  further,  there  are  certain  human  beings  who  are 
not  destitute  of  natural  wills,  but  to  whom  the  Law,  for 
one  reason  or  another,  denies  what  may  be  called  a  legal 
will;  that  is,  the  Law  says  their  natural  wills  are  in- 
operative for  the  exercise  of  certain  classes  of  rights, — 
not,  generally,  for  the  exercise  of  all  their  rights  but  of 
certain  classes  of  rights.  Such  denials  vary  in  different 
systems  of  law.  Let  us  take  a  simple  instance  from  the 
Common  Law.  Suppose  Doe,  a  young  man  of  nineteen, 


30     THE  NATURE  AND  SOURCES  OF  THE  LAW 

owns  a  house,  and  Roe,  coming  along,  breaks  the  windows. 
Doe  has  a  right  to  compensation;  and  yet,  if  he  wills  to 
bring  a  suit  against  Roe,  either  himself  or  by  his  agent 
or  attorney,  the  Law  does  not  regard  that  will,  and  the 
court  will  refuse  in  that  suit  to  compel  Roe  to  make  com- 
pensation, because  the  right  has  not  been  put  in  motion 
by  a  will  which  the  Law  regards  as  operative. 

What  is  to  be  done?  A  next  friend,  or  a  guardian, 
exercises  his  will  and  brings  a  suit  in  the  name  and  be- 
half of  the  infant.  The  will  of  the  guardian  is  attributed 
to  the  infant.  It  is  not  the  guardian,  but  the  infant,  who 
is  the  subject  of  the  right — the  legal  person.  We  usually 
say  this  attribution  is  a  fiction. 

And  here  I  must  make  a  digression,  I  fear  a  rather 
long  digression,  on  the  nature  and  use  of  fictions  in  the 
Law.  There  is  a  strong  feeling  against  the  use  at  the 
present  day  of  fictions  in  the  Law.  This  feeling  is  justifi- 
able or  not,  according  as  the  fictions  belong  to  the  one  or 
the  other  of  two  classes,  the  distinction  between  which 
was  clearly  brought  out,  for  the  first  time,  so  far  as  I  am 
aware,  by  Ihering,1 — one  of  the  many  services  which  he 
has  rendered  to  the  science  of  Jurisprudence. 

The  first  class  of  fictions  is  called  by  Ihering  "historic 
fictions."  These  historic  fictions  are  devices  for  adding 
new  law  to  old  without  changing  the  form  of  the  old  law. 
Such  fictions  have  had  their  field  of  operation  largely 
in  the  domain  of  procedure,  and  have  consisted  in  pre- 
tending that  a  person  or  thing  was  other  than  that  which 
he  or  it  was  in  truth  (or  that  an  event  had  occurred  which 
had  not  in  fact  occurred)  for  the  purpose  of  thereby  giv- 
*3  Geist  d.  rom.  R.  (4th  ed.)  §  58,  pp.  301-308. 


LEGAL  PERSONS  31 

ing  an  action  at  law  to  or  against  a  person  who  did  not 
really  come  within  the  class  to  or  against  which  the  old 
action  was  confined. 

The  praetors  employed  such  fictions  in  aiding  them  to 
build  up  the  towering  fabric  of  the  Roman  Law  on  the 
narrow  basis  of  the  Twelve  Tables.1  Thus,  persons  to 
whom  the  praetor  thought  it  just  that  a  man's  property 
should  go  on  his  death, — relations,  for  instance,  on  the 
mother's  side,  who  were  not  heirs, — were,  by  a  fiction, 
considered  heirs  and  were  allowed  to  use  actions  such  as 
heirs  could  use.  "Heredes  quidem  non  sunt,  sed  heredis 
loco  constituuntur  beneficio  prcetoris.  Ideoque  sen  ipsi 
agant,  sen  cum,  his  agatur,  ficticiis  actionibus  opus  est,  in 
quibus  heredes  esse  finguntur."  2 

So  when  it  was  thought  just  that  an  action  which  was 
given  by  the  Civil  Law  only  to  or  against  a  Roman  citizen 
should  be  extended  to  or  against  a  foreigner;  "Civitas 
Romano,  peregrino  fingitur,  si  eo  nomine  agat  out  cum  eo 
agatur,  quo  nomine  nostris  legibus  actio  constituta-  estf 
si  modo  justum  sit  earn  actionem  etiam  ad  peregrinum  ex- 
tendi."  3 

Fictions  have  played   an  important  part  in  the  ad-   in  the 
ministration  of  the  Law  in  England,  and  it  is  character-  Law 
istic  of  the  two  peoples  that  the  use  of  fictions  in  England 

1The  praetors  were  high  officers  charged  with  the  administra- 
tion of  justice  in  the  earlier  days  of  Roman  law.  The  Twelve 
Tables  were  a  codification  of  the  ancient  customary  law,  made  about 
the  year  450  B.  C.  and  inscribed  upon  bronze  tablets. 

a  "Heirs  indeed  they  are  not,  but  they  are  put  in  the  place  of 
heirs  by  favor  of  the  praetor.  And  therefore  whether  they  sue, 
or  are  sued,  there  must  be  fictitious  suits  in  which  they  are  feigned 
to  be  heirs."  Ulp.  Fragm.  28,  12. 

1  "Roman  Citizenship  is  fictitiously  given  .to  a  foreigner,  if  he  sue 
or  be  sued  under  a  head  under  which  by  our  laws  an  action  lies,,  if 
only  it  be  just  that  that  action  be  extended  also  to  a  foreigner." 
Gai.  4,  37. 


32     THE  NATURE  AND  SOURCES  OF  THE  LAW 

was  bolder  and,  if  one  may  say  so,  more  brutal  in  England 
than  it  was  in  Home. 

Thus,  for  instance,  in  Home  the  fiction  that  a  foreigner 
was  to  be  considered  as  a  citizen  was  applied  in  this  way. 
It  was  not  directly  alleged  that  the  foreigner  was  a  citizen, 
but  the  mandate  by  the  praetor  to  the  judge  who  tried 
the  case  was  put  in  the  following  form:  "If,  in  case 
Aulus  had  been  a  Roman  citizen,  such  a  judgment  ought 
to  have  been  rendered,  then  render  such  a  judgment." 
In  England  the  plaintiff  alleged  a  fact  which  was  false, 
and  the  courts  did  not  allow  the  defendant  to  contradict  it. 

One  of  the  purposes  for  which  the  English  courts  al- 
lowed fictions  was  to  extend  their  jurisdiction.  A  maxim 
says  that  to  extend  jurisdiction  is  the  part  of  a  good  judge. 
When  judges  and  their  officers  were  paid  largely  by  fees, 
there  was  a  somewhat  less  exalted  motive.  The  modes 
in  which  the  courts  employed  fictions  for  this  end  are 
familiar  to  all  readers  of  Blackstone. 

Of  the  three  superior  Courts  of  Law,  the  King's  Bench, 
the  Common  Pleas  and  the  Exchequer,  the  Court  of  Com- 
mon Pleas  alone  had  original  jurisdiction  of  causes  be- 
tween subject  and  subject  not  involving  violence  or  fraud; 
but,  as  an  exception,  when  a  man  was  in  the  custody  of 
the  Marshal  or  prison-keeper  of  the  Court  of  King's 
Bench,  he  could  be  sued  also  in  the  latter  court.  Now 
a  plaintiff,  wishing  to  sue  in  the  King's  Bench  for  an 
ordinary  debt,  would  allege  that  the  defendant  was  in  the 
custody  of  the  Marshal,  and  that  therefore  the  case  was 
within  the  jurisdiction  of  that  court.  The  allegation  was 
false,  but  tne  court  did  not  allow  the  defendant  to  con- 
tradict it. 

By  a  like  fiction,  the  Court  of  Exchequer  extended  its 


LEGAL  PERSONS  33 

jurisdiction.  It  was  properly  a  court  of  revenue  only, 
but  a  debtor  of  the  King  was  allowed  to  sue  another 
subject  in  that  court,  on  the  ground  that  the  defendant, 
by  withholding  from,  the  plaintiff  his  due,  made  the 
plaintiff  less  able  to  discharge  his  debt  to  the  King.  Now 
a  plaintiff,  desiring  to  sue  in  the  Exchequer  to  collect 
money  or  damages  to  which  he  was  entitled,  brought  a 
writ  called  quo  mvnus,  in  which,  after  stating  his  claim 
against  the  defendant,  he  alleged  that  by  reason  of  the 
withholding  by  the  defendant  of  the  plaintiff's  due,  the 
plaintiff  was  the  less  able  to  discharge  his  debt  to  the 
King.  The  allegation  that  the  plaintiff  was  indebted  to 
the  King  was  false,  but  the  court  did  not  allow  it  to  be 
contradicted.1 

These  devices,  however,  were  not  applicable  to  suits 
for  the  recovery  of  a  freehold  interest, — that  is,  of  an 
interest  in  fee  or  for  life  in  land.  Of  such  suits  the  Court 
of  Common  Pleas  had  sole  jurisdiction.  But  suits  to 
recover  interests  less  than  freehold — i.e.  terms  for  years 
— could  be  brought  in  the  King's  Bench.  Thomas  Plow- 
den,  then,  desiring  to  sue  in  the  King's  Bench  to  recover 
a  freehold  interest  from  Henry  Moore,  who  was  in  posses- 
sion, caused  a  suit  to  be  brought  in  that  court  by  one 
John  Doe,  in  which  it  was  alleged  that  Plowden  had 
leased  the  land  to  Doe  for  a  term  of  years,  that  Doe 
entered  upon  the  premises  leased,  that  one  William  Stiles, 
known  as  the  casual  ejector,  entered  upon  the  premises 
leased,  and  with  swords,  knives,  and  staves  ousted  Doe 
from  the  land.  At  the  same  time  Plowden  sent  to  Moore 
a  letter  purporting  to  be  written  to  Moore  by  his  "lov- 
ing friend"  Stiles,  the  casual  ejector,  saying  that  unless 
*3  Blackstone,  Com.  43,  45. 


34     THE  NATURE  AND  SOURCES  OF  THE  LAW 

Moore  appeared  as  defendant,  Stiles  would  suffer  judg- 
ment to  be  entered  against  him.  Doe  and  his  lease, 
Stiles  and  his  swords,  knives,  and  staves,  were  the  crea- 
tures of  fiction,  but  the  court  would  not  let  Moore  in  to 
defend  the  suit  unless  he  would  confess  lease,  entry,  and 
ouster.1  The  fictitious  proceeding  was  brought  over  to 
this  country,  and  prevailed  everywhere  in  the  Colonies, 
except  in  Massachusetts  and  New  Hampshire.  The  ficti- 
tious Doe  changed  his  name  to  Jackson  in  New  York 
and  to  Den  in  New  Jersey.  I  do  not  know  if  even  now 
the  old  fiction  has  entirely  disappeared  in  the  United 
States.2 

There  was  no  lack  of  other  fictions  in  the  English  Law, 
in  the  shape  of  allegations  which  one  of  the  parties  made 
and  the  other  was  not  allowed  to  deny,  in  order  that 
the  wine  of  new  law  might  be  put  into  the  bottles  of  old 
procedure.  Thus,  in  an  action  of  trover  to  recover  dam- 
ages for  the  detention  of  goods  to  which  the  plaintiff  was 
entitled,  he  alleged  that  he  casually  lost  the  goods  and 
that  they  came  to  the  possession  of  the  defendant  by 
finding.  The  most  grotesque  of  these  fictions  was  that 
by  which,  for  the  purpose  of  giving  a  remedy  in  Eng- 
land for  a  wrong  done  in  the  Mediterranean,  it  was 
alleged  that  the  Island  of  Minorca  was  at  London,  in  the 
parish  of  St.  Mary  Le  Bow  in  the  Ward  of  Cheap;3  and 
yet,  perhaps,  the  palm  must  be  given  to  that  fiction  of  the 
United  States  Federal  Courts  that  all  the  stockholders 
in  a  corporation  are  citizens  of  the  State  which  incor- 
porates it.  This  fiction  is  remarkable  for  the  late  date 

1 3  Bl.  Com.  203. 

"The  common  law  action  of  ejectment  still  exists  in  Alabama. 
See  Civil  Code   (1907),  sec.  3838;  Perolio  v.  Doe,  197  Ala.  560. 
*Mostyn  v.  Fdbrigas,  Cowper,  161. 


LEGAL  PERSONS  35 

of  its  origin  and  for  its  absurd  results.  I  shall  return 
to  it  in  another  connection.1 

As  Maine  says,  in  his  "Ancient  Law."  2  fictions  of  the  Disuse 

.     .       T  of  fictions 

historical  kind  are  almost  a  necessity  of  the  Law  at  a 

certain  stage  of  human  development.  "They  satisfy  the 
desire  for  improvement,  which  is  not  quite  wanting,  at 
the  same  time  that  they  do  not  offend  the  superstitious 
disrelish  for  change  which  is  always  present."  But  as  a 
system  of  Law  becomes  more  perfect,  and  its  development 
is  carried  on  by  more  scientific  methods,  the  creation  of 
such  fictions  ceases,  and  better  definitions  and  rules  are 
laid  down  which  enable  us  to  dispense  with  the  historic 
fictions  which  have  been  already  created.  Such  fictions 
are  scaffolding, — useful,  almost  necessary,  in  construc- 
tion,— but,  after  the  building  is  erected,  serving  only  to 
obscure  it.  A  chief  objection  to  their  continuance, — to 
quote  again  from  Maine,3 — is  that  they  are  "the  great- 
est of  obstacles  to  symmetrical  classification.  .  .  .  There 
is  at  once  a  difficulty  in  knowing  whether  the  rule  which 
is  actually  operative  should  be  classed  in  its  true  or  in 
its  apparent  place." 

Thus,  to  take  an  instance  from  the  practice  as  to  the 
jurisdiction  of  the  Court  of  Exchequer,  of  which  I  have 
spoken,  should  we  say:  The  Court  of  Exchequer  has 
jurisdiction  only  over  matters  concerning  revenue,  but 
as  the  ability  of  the  King's  debtor  to  pay  the  Sovereign 
may  depend  upon  his  collecting  money  due  him  from  other 
subjects,  the  King's  debtors  may  sue  in  the  Exchequer  to 
recover  their  debts,  and  if  any  one  alleges  that  he  is  a 

»P.    184,   post. 
•Pollock's  ed.  p.  31. 
9  /&.,  p.   32. 


36     THE  NATURE  AND  SOURCES  OF  THE  LAW 

debtor  of  the  King's,  the  Court  of  Exchequer  will  hold  it 
to  be  an  uncontradictable  truth?  Or  should  we  say,  all 
persons  can  sue  in  the  Court  of  Exchequer  to  recover 
money  due  them,  if  they  allege  in  their  declaration — 
truly  or  falsely  is  immaterial — that  they  are  debtors  to 
the  King? 

Dogmatic  The  second  class  of  fictions,  according  to  Ihering's 
division,  which  he  calls  dogmatic  fictions,  instead  of  being 
obstacles  to  symmetrical  classification,  have  been  intro- 
duced and  used  as  aids  to  it.  These  dogmatic  fictions 
are  not  employed  to  bring  in  new  law  under  cover  of  the 
old,  as  are  the  historic  fictions,  but  to  arrange  recognized 
and  established  doctrines  under  the  most  convenient  forms. 
Thus,  there  is  a  legal  doctrine  of  unimpeachable  sound- 
ness that  a  purchaser  or  mortgagee  cannot  be  deprived 
of  his  interest  in  the  land  by  any  dealings  by  the  seller 
or  mortgagor,  subsequent  to  the  sale  or  mortgage,  with 
one  who  knows  of  it.  Thus,  if  A.  mortgages  land  to  B., 
and  afterwards  makes  a  deed  of  it  to  C.,  who  knows  of 
the  mortgage  to  B.,  C.  can  hold  nothing  as  against  B. 
Further,  it  is  desirable  that  a  purchaser  or  mortgagee 
should  be  able  to  protect  himself  by  recording  his  title. 
Thus,  to  take  the  example  just  given,  if  A.  mortgages 
to  B.  and  B.  records  his  mortgage,  a  deed  from  A.  to  C. 
will  pass  nothing  as  against  B.,  whether  C.  knows  of  the 
mortgage  or  not.  Now,  C.  is  excluded  in  both  the  cases 
suggested,  but  really  on  distinct  technical  grounds.  In 
the  first  case,  he  is  excluded  because  he  knows  of  the 
mortgage  to  B. ;  in  the  second,  because  B.  has  recorded 
his  mortgage;  and  yet,  because  it  is  convenient  to  treat 
the  whole  subject  together  as  the  results  in  both  cases  are 
the  same,  we  put  it  under  the  head  of  notice,  and  say 


LEGAL  PERSONS  37 

that  the  registration  is  constructive  notice — that  is,  notice 
by  fiction — to  all  the  world. 

Fictions  of  the  dogmatic  kind  are  compatible  with 
the  most  refined  and  most  highly  developed  systems  of 
Law.  Instead  of  being  blameworthy,  they  are  to  be 
praised  when  skilfully  and  wisely  used.  Yet,  though 
handy,  they  are  dangerous,  tools.  They  should  never  be 
used,  as  the  historic  fictions  were  used,  to  change  the 
Law,  but  only  for  the  purpose  of  classifying  established 
rules,  and  one  should  always  be  ready  to  recognize  that 
the  fictions  are  fictions,  and  be  able  to  state  the  real 
doctrine  for  which  they  stand. 

Let  us  return,  now,  to  the  particular  occasion  for  the  Attribution 

V        x-  £  J  A-        £    J  I.-    I,  1.  Of    Wil1    t0 

application  01  a  dogmatic  nction  which  we  nave  to  con-  abnormal 
sider, — the  case  of  a  human  being  who  is  either  naturally  beings 
destitute  of  will,  or  to  whose  will  the  Law,  for  one  reason 
or  another,  has  denied  the  power  of  putting  in  motion 
his  rights  in  certain  matters.  We  have  defined  a  man's 
legal  rights  as  those  rights  which  society  will  enforce 
on  his  motion,1  but  with  more  entire  accuracy  it  may 
be  said  that  a  man's  legal  rights  are  the  rights  which 
society  will  enforce  on  the  motion  of  some  one  authorized 
by  society  to  put  his  rights  in  motion.  In  the  case  of  a 
normal  human  being,  the  only  one  authorized  by  society 
to  put  a  man's  rights  in  motion  is  the  man  himself;  but 
in  the  case  of  an  abnormal  human  being,  the  person 
authorized  to  do  so  is  not  the  man  himself,  but  some  one 
else.  Who  such  person  is,  is  a  matter  to  be  determined 
by  the  rules  of  each  particular  system.  The  fiction  comes 
in  when  we  say  that  what  is,  in  truth,  the  will  of  some  one 
*P.  18,  ante. 


38     THE  NATURE  AND  SOURCES  OF  THE  LAW 

else  exercised  on  his  behalf,  is  the  will  of  the  possessor  of 
the  right, — when  we  attribute  another's  will  to  him.  It 
is  convenient  to  bring  together,  by  means  of  this  attribu- 
tion, the  rights  of  normal  and  abnormal  persons,  for  the 
interests  which  the  rights  are  given  to  protect  are  the 
same  in  both  classes,  and  in  both  classes  the  same  results 
follow  from  the  exercise  of  the  rights. 

Where  action  on  behalf  of  an  abnormal  human  being 
is  taken  in  the  courts,  the  will  attributed  to  him  is  that 
of  some  other  definite  person.  How  about  cases  where 
the  administrative  officers  of  the  State  protect  him  or 
his  property  ? 1  Where  the  inability  to  will  is  not  natural, 
but  imposed  by  Law,  as  in  the  case  of  a  young  man  just 
under  age,  the  imposed  inability  does  not  extend  to  these 
cases.  The  young  man  may  request  the  police  to  protect 
him  or  his'  property.  Where  the  ability  to  will  is  really 
absent — as  in  the  case  of  a  new-born  child  or  of  an  idiot 
— the  will  which  the  Law  attributes  to  the  abnormal  human 
being  is  not  that  of  any  definite  individual,  but  that  which 
is  common  to  all,  or  the  vast  majority,  of  normal  human 
beings.  In  the  case  of  juristic  persons,  as  we  shall  see, 
the  application  of  dogmatic  fictions  is  more  complicated, 
unborn  Included  in  human  beings,  normal  and  abnormal,  as 

legal  persons,  are  all  living  beings  having  a  human  form. 
But  they  must  be  living  beings;  corpses  have  no  legal 
rights.  Has  a  child  begotten,  but  not  born,  rights  ?  There 
is  no  difficulty  in  giving  them  to  it.  A  child,  five  min- 
utes before  it  is  born,  has  as  much  real  will  as  a  child 
five  minutes  after  it  is  born;  that  is,  none  at  all.  It  ia 
just  as  easy  to  attribute  the  will  of  a  guardian,  tutor,  or 

1  See  p.  22,  ante. 


LEGAL  PERSONS  39 

curator  to  the  one  as  to  the  other.  Whether  this  attri- 
bution should  be  allowed,  or  whether  the  embryo  should 
be  denied  the  exercise  of  legal  rights,  is  a  matter  which 
each  legal  system  must  settle  for  itself.  In  neither  the 
Roman  nor  the  Common  Law  can  a  child  in  the  womb 
exercise  any  legal  rights.1 

But  putting  an  end  to  the  life  of  an  unborn  child  is 
generally  in  this  country  an  offence  by  statute  against 
the  State;  and  in  our  Law  a  child  once  born  is  considered 
for  many  purposes  as  having  been  alive  from  the  time 
it  was  begotten.2 

(Ill)  We  have  hitherto  been  considering  as  persons,  super- 

'  i  natural 

human  beings.  We  have  now  to  pass  to  beings  who,  beings 
though  not  human,  are  intelligent,  that  is,  supernatural 
beings.  There  is  no  difficulty  in  giving  legal  rights  to 
a  supernatural  being  and  thus  making  him  or  her  a  legal 
person.  Supernatural  beings — Gods,  angels,  devils,  saints 
— if  they  deal  in  earthly  business  and  appear  before 
earthly  tribunals,  must  do  so  through  priests  or  other 
human  beings,  but  the  relation  which  obtains  between  a 
God  and  his  priests  is  like  that  which  obtains  between  a 

'See  1  Windscheid,  Pand.   §  52. 

*  The  history  of  the  development  of  the  Common  Law  on  this  sub- 
ject is  curious.  Originally,  a  child  does  not  seem  to  have  been 
considered  for  any  purpose  as  living  before  his  birth.  The  House 
of  Lords,  at  the  end  of  the  seventeenth  century,  misunderstanding 
the  existing  law,  and  to  the  great  disgust  of  the  Judges,  allowed 
a  child  who  was  begotten  but  not  born  at  the  end  of  a  life  estate 
to  take  the  property  as  if  he  had  been  born  at  that  date.  Then 
the  doctrine  was  extended  to  cover  all  cases  where  it  was  for  the 
benefit  of  the  child  to  be  considered  as  having  been  born.  Is  the 
doctrine  to  be  extended  to  cases  where  such  extension  benefits,  not 
the  child,  but  others?  It  is  well  settled  that  it  does  so  extend  in 
cases  arising  under  the  Rule  against  Perpetuities ;  whether  it  should 
be  extended  to  other  cases  is  yet  sub  judice.  The  leading  authori- 
ties are  collected  in  5  Gray,  Cases  on  Property  (2d  ed.)  47-54, 
718-720  (1908). 


40     THE  NATURE  AND  SOURCES  OF  THE  LAW 

normal  man  and  his  agents  or  attorneys,  and  not  like  that 
which  exists  between  an  infant  and  his  guardian,  where, 
as  we  have  seen,  the  will  of  the  latter  is  attributed  to  the 
former.  There  is  no  need  of  fiction  here.  In  the  society 
which  recognizes  the  legal  rights  of  a  God,  the  existence 
of  the  God  is  a  fact  of  revealed  religion,  and  that  authority 
to  represent  him  has  been  given  by  the  God  to  the  priests, 
is  also  a  fact  of  revealed  religion.  The  society  is  dealing 
•with  what  it  believes  to  be  a  reality,  just  as  much  as 
when  it  deals  with  human  beings;  it  is  not  pretending 
that  that  is  true  which  it  knows  or  believes  not  to  be 
true. 

In  several  systems  of  Law,  supernatural  beings  have 
been  recognized  as  legal  persons.  This  was  true,  to  a 
limited  extent,  in  ancient  Home.1  The  temples  were, 
perhaps,  owned  by  the  Gods.  The  Romans  held  very 
different  views  from  those  of  Mr.  Malthus.  He  who  had 
the  most  children  served  the  State  best,  and  so,  a  privilege 
to  take  by  will  was  given  to  those  women  who  had  had  at 
least  three  children, — jus  trium  liberorum.  In  the  course 
of  time,  the  same  privileges  were  given  as  a  reward  to  per- 
sons who  had  not  had  three  children,  or  indeed,  any 
children  at  all,  but  the  same  name  was  retained,  and 
so,  oddly  enough,  to  Diana,  of  all  persons  in  the  world, 
or  rather  out  of  the  world,  was  given  the  jus  trium 
liberorum.2 

When,  under  Constantino,  Christianity  took  the  place, 
as  the  State  Church,  of  the  older  religions,  it  might  have 

*3  Gierke,  Deutsche  Genossenschaftsrecht,  82-65. 

*Dion  Cassius,  55,  2;  Ulp.  Fragra.  22,  6;  1  Pernice,  Labeo,  260- 
263.  It  should  be  observed  that  it  is  to  Diana,  Ephesiaca  that 
Ulpian  allows  testamentary  privilege,  and  it  is  perhaps  not  clear 
that  the  Ephesian  Artemis  did  not  have  children. 


LEGAL  PERSONS  41 

been  supposed  that  the  Christian  God  and  his  saints 
would  have  become  legal  persons ;  but  this  does  not  seem 
to  have  been  the  case.  The  early  Christians  were  wary 
of  imitating  the  religious  establishments  of  the  Empire; 
:vn  their  own  organizations  they  had  recourse  more  readily 
to  the  analogies  and  precedents  of  the  civil  administra- 
tion. The  Church  buildings  and  charitable  institutions 
were  owned  by  corporations,  or  were  like  the  modern 
German  stiftungen*  and  Justinian 2  enacted  that  if  any 
one  should  make  Christ  his  heir,  the  church  of  the  tes- 
tator's domicil  should  be  the  heir,  and,  if  any  archangel  or 
martyr  was  named  as  heir,  his  oratory  should  be  deemed 
the  heir.  I  will  return  later  to  this  law  of  Justinian's,  in 
connection  with  juristic  persons.3 

Though  the  sound  view  undoubtedly  is  that  in  the  Civil 
Law  of  the  present  day  there  are  no  supernatural  persons, 
yet  the  opposing  view  has  not  been  without  defenders. 
Thus  Uhrig  says:  "Since  the  Church  (KircJiengemeinde) 
is  the  bride  of  Christ,  she  dwells  with  him  in  this  house 
of  God,  and  the  property  of  the  Church  (Kirchenver- 
mogen)  belongs  as  dowry  to  her,  but  the  Lord  has  durante 
matrimonio  the  property  in  her  dowry."  4 

But  in  the  Germany  of  the  Middle  Ages,  God  and  the 
saints  seem  to  have  been  often  regarded  as  true  legal 
persons.5  Sometimes  the  expression  is  odd  enough: 
Thus,  a  donor  declares,  "Dai  unse  leve  frauwe  Maria  die 
moder  Chrisii  Jesu  und  der  ritter  Sanctus  Georgius  disses 

*P.  58,  post. 

»1  Cod.  1,2,  25  (26). 

»Pp.  293-297,  post. 

*See  1  Meurer,  Der  Begriff  der  heiligen  Sachen,  §  57,  p.  282, 
note  1. 

'2  Gierke,  Deutsche  Genossenschaftsrecht,  527  et  seq.,  quoting 
the  following  instances,  with  many  others. 


42     THE  NATURE  AND  SOURCES  OF  THE  LAW 

kirspels  gruntherrn  sein";  or  "Domini  genetrici  beatce 
Marice  in  perpetuum  possidendum  perdono" ;  or  to  Saint 
Widon  "in  perpetuam  hereditatem,"  or  "Deo  omnipotenti 
ejusque  prcenominatis  apostolis  hereditario  jure  con- 
ceditur."  1  Sometimes  the  supernatural  person  is  charged 
with  a  legal  duty.  Thus,  "Sanctus  Spiritus  tenetur  40 
sol.  pro  dudbus  mansis  quas  hdbuit  in  domo  laterali." 
"Sanctus  Spiritus  in  Travemunde  dot  5  marcas  annuatim 
de  molendino  et  pratis  et  agris."  2 

In  the  Common  Law,  neither  the  Deity  nor  any  other 
supernatural  being  has  ever  been  recognized  as  a  legal 
person.3  Blasphemy  has  been  dealt  with  as  a  crime,  but 
the  legal  person  who  has  a  legal  right,  and  who  alone 
can  put  it  in  motion,  is,  as  in  all  crimes,  the  State.  Very 
probably  the  motive  of  the  State  in  giving  itself  this  right 
to  sue  for  blasphemy  was,  originally,  because  it  was 
deemed  that  such  prosecution  was  pleasant  to  the  Almighty 
or  would  avert  his  wrath.  !NTow  such  prosecutions  are 
usually  defended  on  the  ground  that  the  utterance  is 
offensive  to  many  of  the  community. 

Animals  (IV)   Thus  far  we  have  been  considering  human  beings 

rfghtsV n       and  supernatural  beings,  but  animals  may  conceivably 

"'That  our  dear  lady  Mary  the  mother  of  Jesus  Christ  and  the 
knight  Saint  George  be  the  feudal  lords  of  this  parish."  "To  Our 
Lord's  mother,  the  blessed  Mary,  I  grant  to  be  possessed  for  ever." 
"For  a  perpetual  inheritance."  "It  is  granted  to  Almighty  God  and 
his  aforesaid  apostles  to  be  held  by  hereditary  right." 

"'The  Holy  Ghost  is  bound  to  pay  40  shillings  for  the  two  fields 
which  it  has  had  in  the  side  farm."  "The  Holy  Ghost  in  Travemunde 
gives  5  marks  annually  as  rent  of  a  mill  and  meadows  and  fields." 

*  There  is  on  record,  however,  in  the  registry  of  deeds  for  Sullivan 
County,  Pennsylvania,  a  deed  of  land  in  the  town  of  Celestia,  by 
which  Peter  Armstrong  and  his  wife  grant  said  land  "to  Almighty 
God,  who  inhabiteth  Eternity,  and  to  his  heirs  in  Jesus  Messiah." 
Armstrong  was  a  member  of  a  religious  community  that  flourished 
in  that  place  for  many  years. 


LEGAL  PERSONS  43 

be  legal  persons.  First,  legal  persons  because  possessing 
legal  rights.1  In  the  systems  of  modern  civilized  socie- 
ties, beasts  have  no  legal  rights.  It  is  true  there  are 
everywhere  statutes  for  their  protection,  but  these  have 
generally  been  made,  not  for  the  beast's  sake,  but  to  pro- 
tect the  interests  of  men,  their  masters.  Such  statutes 
have  sometimes,  however,  been  enacted  for  the  sake  of  the 
animals  themselves.  It  has,  indeed,  been  said  that  statutes 
passed  to  prevent  cruelty  to  animals  are  passed  for  the 
sake  of  men  in  order  to  preserve  them  from  the  moral 
degradation  which  results  from  the  practice  of  cruelty, 
but  this  seems  artificial  and  unreal;  the  true  reason  of 
the  statutes  is  to  preserve  the  dumb  creatures  from  suf- 
fering. Yet  even  when  the  statutes  have  been  enacted 
for  the  sake  of  the  beasts  themselves,  the  beasts  have  no 
rights.  The  persons  calling  upon  the  State  for  the  en- 
forcement of  the  statutes  are  regarded  by  the  Law  as 
exercising  their  own  wills,  or  the  will  of  the  State  or 
of  some  other  organized  body  of  human  beings.  The 
Law  of  modern  civilized  societies  does  not  recognize  ani- 
mals as  the  subjects  of  legal  rights. 

It  is  quite  conceivable,  however,  that  there  may  have 
been,  or  indeed,  may  still  be,  systems  of  Law  in  which 
animals  have  legal  rights, — for  instance,  cats  in  ancient 
Egypt,  or  white  elephants  in  Siam.  When,  if  ever,  this 
is  the  case,  the  wills  of  human  beings  must  be  attributed 
to  the  animals.  There  seems  no  essential  difference  be- 
tween the  fiction  in  such  cases  and  in  those  where,  to  a 
human  being  wanting  in  legal  will,  the  will  of  another 
is  attributed. 

*P.  20,  ante. 


44  THE  NATURE  AND  SOURCES  OF  THE  LAW 

Animals  Secondly,  animals  as  legal  persons,  because  subject  to 

as  subject      ,  .  T 

to  duties  legal  duties.  In  modern  systems  of  law,  beasts  are  not 
subject  to  legal  duties.  As  we  have  seen,  tbe  power  of 
obeying  or  of  understanding  a  command  is  not  necessary 
for  the  creation  of  a  duty.  And,  if  a  dog  is  unable  to 
understand  the  words  of  a  statute,  so  is  an  idiot  or  a 
new-born  child.  But  in  order  that  any  being  may  be- 
come a  legal  person  by  virtue  of  a  command  issued  by 
organized  society,  the  command  must  be  directed  to  that 
being.  Now,  the  State  does  not  give  commands  to  dogs. 
If  there  is  an  ordinance  that  the  town  constable  may  kill 
all  dogs  without  collars,  the  constable  may  have  a  legal 
right  to  kill  such  dogs,  but  the  dogs  are  not  under  a  legal 
duty  to  wear  collars.  A  legal  duty  to  put  collars  on  the 
dogs  is  imposed  on  their  masters.1 

In  modern  Jurisprudence,  animals  have  no  legal  duties, 
but  in  early  stages  of  the  Law,  they  seem  to  have  been 
regarded  for  some  purposes  as  having  legal  duties,  for  a 
breach  of  which  they  were  liable  to  be  punished.  The 
fiction  here,  if  fiction  there  was,  did  not  consist,  as  would 
be  the  case  if  legal  rights  were  given  to  beasts,  in  at- 
tributing to  them  the  will  of  human  beings,  but  in 
attributing  to  them  a  capacity  to  receive  commands 
directed  to  them.  It  is  likely,  however,  that  there  was 
often  no  conscious  use  of  fiction  at  all.  It  was  genuinely 
believed  that  the  animals  really  knew  that  they  were  dis- 
obeying the  Law.  Moreover,  it  is  highly  probable  that  in 
primitive  times  such  dealings  with  beasts  originated  in  a 
crude  notion  of  vengeance,  without  any  distinct  attribution 
of  intelligence  or  will  to  the  animal,  and  when  such  prac- 
tices survived,  they  often,  it  is  likely,  took  on  the  form 
1Pp.  24,  25,  ante. 


LEGAL  PERSONS  45 

of  religious  expiation,  rather  than  of  punishment  for 
breach  of  legal  duty.1 

This  idea  of  regarding  an  animal  as  the  subject  of 
a  legal  duty  prevailed  among  the  Jews  and  the  Greeks. 
Thus,  "And  surely  your  blood  of  your  lives  will  I  re- 
quire; at  the  hand  of  every  beast  will  I  require  it,  and 
at  the  hand  of  man" ;  2  "If  an  ox  gore  a  man  or  a  woman 
that  they  die;  then  the  ox  shall  be  surely  stoned  and  his 
flesh  shall  not  be  eaten."  3  So  in  Plato,  "  'Eav  d'  apa.  VTTO- 
£vyiov  77  foioi'  aXXo  TI  fovevvy  rivet  .  .  .  CTre^LTuaav  fj.€V  ol 
rov  <f>6vov  T<JJ  KTelvavTi,  diadiKa£6vT(av  dt  T&V 
olaiv  Q.V  /ecu  OTTOOXHS  irpoffTa^fj  6  irpocrrjKuv,  TO  di 
&4>\ov  e£«  TWV  opcov  rijs  x&Pas  aTTOKTfivavTas  dioplffai." 4 

The  most  remarkable  instances  of  the  treatment  of 
beasts  as  having  legal  duties  are  to  be  found  in  the  judi- 
cial proceedings  against  them  which  were  had  in  the 
Middle  Ages.  They  were  summoned,  arrested,  and  im- 
prisoned, had  counsel  assigned  them  for  their  defence, 
were  defended,  sometimes  successfully,  were  sentenced  and 
executed.  I  should  like  to  dwell  on  this  curious  develop- 
ment of  manners  and  belief,  which  is  little  known,  but  it 
is  so  foreign  not  only  to  any  actual  but  to  any  rational 
jurisprudence  that  I  do  not  feel  as  if  I  ought  to  linger 
on  it  longer.5 

1  See  Holmes,  Com.  Law,  7-24. 

•Gen.  ix.  5. 

»  Ex.  xxi.  28. 

4  "And  if  a  beast  of  burden  or  other  animal  cause  the  death  of 
any  one,  the  kinsmen  of  the  deceased  shall  prosecute  the  slayer 
for  murder,  and  the  wardens  of  the  country,  such,  and  so  many 
as  the  kinsmen  shall  appoint,  shall  try  the  cause,  and  let  the  beast 
when  condemned  be  slain  by  them,  and  cast  beyond  the  borders." 
Plato,  De  Legibus,  IX,  12.  Trans,  by  Jowett  (1871),  vol.  4,  385. 

'See  Amira,  Thierstrafen,  especially  p.  6  and  p.  15,  note  5;  A. 
Franklin,  La  vie  Prive'e  d'autrefois,  Les  Animaux,  Tom.  2,  p.  255; 
Osenbriiggen,  Rechtsgeschichtliche  Studien,  139-149;  Farmer  Car- 


46 


THE  NATURE  AND  SOURCES  OF  THE  LAW 


Inanimate 

things 
as  having 
rights 


Inanimate 
things  as 
subject 
to  duties 


(V)  Now  to  go  a  step  outside  the  domain  of  living 
beings.  Inanimate  things  may  conceivably  be  legal  per- 
sons. First,  legal  persons  as  possessing  legal  rights. 
Inanimate  things  may  be  regarded  as  the  subject  of  legal 
rights,  and,  as  such,  entitled  to  sue  in  the  courts.  Such, 
perhaps,  were  some  of  the  temples  in  pagan  Rome,1  and 
such  seem  often  to  have  been  church  buildings  and  the 
relics  of  the  saints  in  the  early  Middle  Ages.  Thus,  we 
find  gifts  "ad  sanctum  locum  ubi  ego  jacere  cupio,  i.e. 
apud  sanctum  Albanum"  ;  "locis  sanctorum  conferimus"  ; 
"locis  venerabilibus"  ;  "tradidi  ad  reliquias  Sancti  Sdl- 
vatoris  et  Sanctce  Marice  et  in  manus  Liudgeri  presbiteri, 
qui  easdem  reliquias  procurabat,  portionem  hereditatis 
mece" ;  "trado  ad  monasterium  quod  dicitur  Scaphusa  et 
est  exstructum  .  .  .  ubi" z  etc.  These  and  many  like 
examples  will  be  found  in  Gierke.3  If  an  inanimate  thing 
is  regarded  as  the  subject  of  a  legal  right,  the  will  of  a 
human  being  must,  as  in  the  case  of  an  animal,  be  at- 
tributed to  it,  in  order  that  the  right  may  be  exercised. 

Secondly,  inanimate  things  as  legal  persons,  because 
subjects  of  legal  duties.  As  is  the  case  with  animals, 
inanimate  things  have  been  regarded  as  the  subjects  of 
legal  duties, — I  was  about  to  add  in  primitive  times, 

ter's  Dog  Porter,  2  Hone,  Every  Day  Book,  198;  Quoniam  AttacMa- 
menta,  c.  48,  pi.  10-13,  in  Regiam  Majestatem  (Ancient  Laws  of 
Scotland),  ed.  Skene  (1609),  fol.  86. 

Since  writing  the  above  I  have  seen  the  Criminal  Prosecution  and 
Capital  Punishment  of  Animals,  by  E.  P.  Evans,  New  York,  1906. 
It  is  of  great  value  as  a  book  of  reference. 

'But  see  2  Puchta,  Inst.  §  191,  p.  7;   1  Meurer,  §  53. 

'"To  the  holy  place  where  I  wish  to  be  buried,  that  is,  at  Saint 
Albans";  "we  offer  to  the  abodes  of  the  saints";  "to  the  revered 
places";  "I  have  transferred  to  the  relics  of  the  Blessed  Savior  and 
the  Blessed  Mary  and  into  the  hands  of  Liudger  the  priest,  who 
has  charge  of  the  said  relics,  a  portion  of  my  inheritance";  "I 
transfer  to  the  monastery  called  Scaphusa,  built  where,"  etc. 

'2  Deutsche  Genossenschaftsrecht,  542-546. 


LEGAL  PERSONS  47 

but,  as  we  shall  see,  the  notion  has  persisted  even  to  our 
own  days.  If  there  was  a  fiction  here,  it  was  not  in 
attributing  the  real  will  of  a  human  being  to  the  thing, 
but  in  assuming  that  the  thing  had  an  intelligence  of  its 
own.  It  would  seem,  however,  that  there  was  often  no 
conscious  fiction,  but  some  vaguely  realized  belief  that  the 
thing  had  a  true  intelligence  and  will ;  and  very  often,  as 
in  the  case  of  animals,  the  idea  of  religious  expiation  had 
a  great,  if  not  a  chief,  part  in  the  proceedings  against 
inanimate  things. 

In  Greece,  proceedings  against  inanimate  things  were 
not,  it  would  seem,  infrequent.1 

In  the  Common  Law,  this  attribution  of  guilt  to  inani- 
mate things,  and  this  mixture  of  the  idea  of  punishment 
with  that  of  expiation,  appears  in  the  form  of  deodands. 
When  a  man  had  been  convicted  of  homicide,  the  weapon 
or  other  article  with  which  the  deed  was  done,  the  thing 
itself  or  its  value,  was  called  a  deodand,  and,  as  its  name 
imports,  was  at  first  forfeited  to  the  Church,  but  after- 
wards to  the  Crown.  This  is  the  reason  for  the  allega- 
tion of  the  value  of  the  lethal  weapon  which  appears  in 
the  old  indictments.  Thus,  on  an  indictment  for  murder 
or  manslaughter  by  stabbing,  the  indictment  alleged  that 
the  prisoner  then  and  there  struck  the  deceased  with  a 
certain  knife  of  the  value  of  one  shilling,  which  he  then 
and  there  in  his  right  hand  held.  And  in  England  the 
doctrine  was  applied  as  late  as  1842,2  in  the  case  of  a 
locomotive  engine.  It  should  be  added  that  anything 
which  had  killed  a  man  was  liable  to  be  forfeited  as  a 

1  Besides  the  citations  in  Holmes,  Com.  Law,  7,  8,  see  Demos- 
thenes, Kara  'Apurroicp&Tous,  §  18. 

'  Queen  v.  Eastern  Counties  R.  Co.,  10  M.  &  W.  58. 


48     THE  NATURE  AND  SOURCES  OF  THE  LAW 

deodand,  though  there  had  been  no  homicidal  intent  on 
the  part  of  a  human  being;  and  in  that  form  there  have 
been  precedents  in  the  early  history  of  this  country.  In 
the  records  of  the  Colonies  of  Plymouth  and  Massachu- 
setts, there  are  instances  of  the  forfeiture  of  a  boat  or  a 
gun  as  having  caused  the  death  of  a  man.1 

Judge  Holmes,  in  his  book  on  the  Common  Law,  has 
shown  how  the  imagination  that  there  must  be  life  in  a 
moving  object  affected  the  law  of  deodands,  and,  as  he 
justly  remarks,  this  notion  appears  most  conspicuously 
and  persistently  in  the  Admiralty.  In  the  Admiralty, 
proceedings  in  rem  are  brought  against  ships.  This,  how- 
ever, at  the  present  day,  is  a  mere  form.  But  a  most 
remarkable  instance  of  application  in  the  substantive  law 
of  this  barbarous  notion  of  a  ship's  intelligence  occurred 
only  some  forty  years  ago.  On  land,  when  a  man's  vehicle, 
say  his  automobile,  is  taken  by  the  Law  out  of  his  cus- 
tody, law  and  justice,  alike,  in  all  civilized  countries,  im- 
pose on  him  no  liability  for  accidents  that  the  vehicle  may 
cause  while  in  the  hands  of  the  official.  A  sheriff  takes 
my  horse  and  wagon  on  legal  process  against  me;  hia 
bailiff  in  charge  of  them  runs  over  a  woman;  I  am  not 
liable.  An  officer  is  appointed  to  take  charge  of  car- 
riages and  drive  them  over  a  bridge;  he  takes  possession, 
by  virtue  of  his  authority,  of  your  carriage,  and  an  acci- 
dent occurs;  you  are  not  responsible.  Suppose,  now,  a 
ship  is  in  the  hands  and  under  the  orders  of  a  pilot,  whom 
the  owner  and  master  have  been  compelled  to  take  against 
their  will,  and,  by  the  pilot's  negligence,  a  collision  en- 
sues. The  Supreme  Court  of  the  United  States,  in  1868,2 

*B.g.  a  boat.    Plymouth  Colony  Records,  vol.  I,  p.  *157.     (1638) 
China,  1  Wall.  53. 


LEGAL  PERSONS  49 

held  that  in  such  a  case  the  ship  was  guilty.  Judge 
Holmes 1  speaks  of  this  decision  with  more  tenderness 
than  it  deserves. 

(YI)  Thus  far  we  have  been  dealing  with  cases  where  juristic 
a  legal  person,  the  subject  of  a  legal  right  or  a  legal  duty, 
is,  or  is  believed  to  be,  some  one  or  something  real.  Where 
there  has  been  a  fiction,  it  has  consisted  in  attributing  to 
or  assuming  for  such  real  entity  a  will  which  he,  she,  or 
it  does  not,  in  truth,  possess;  but  this  is  the  only  fiction. 
The  being  or  thing  to  which  this  will  is  by  fiction  given 
is  a  reality, — a  man,  a  dog,  a  ship.  We  have  now  to  con- 
sider juristic  persons,  so  called. 

The  power  of  conceiving  an  abstraction  which  is  im- 
perceptible to  any  of  the  senses,  which  yet  has  men  for 
its  visible  organs,  and  which,  although  not  having  a  will 
and  passions,  may  yet  have  the  will  and  passions  of  men 
attributed  to  it, — this  power  is  one  of  the  most  wonderful 
capacities  of  human  nature.  If  not  a  necessity  of  their 
nature,  it  is  a  power  which  the  races  of  men  seem  to 
find  no  difficulty  in  exercising.  If  there  was  a  time  when 
man  was  without  the  personifying  faculty,  it  is  found  in 
full  play  in  the  early  history  of  civilization.  Among 
no  people  has  the  conception  of  the  personality  of  the 
State  been  more  highly  developed  than  among  the  Greeks, 
and  the  idea  of  the  corporation  was  recognized  by  the 
Romans. 

One  dislikes  to  call  such  an  entity  "fictitious,"  because 
"fictitious"  is  what  Bentham  would  call  a  "dyslogistic 
epithet,"  and  the  same  objection  applies,  though  in  a  less 
degree,  to  the  use  of  "artificial."  Perhaps,  "juristic" 

»Com.  Law,  28. 


50     THE  NATURE  AND  SOURCES  OF  THE  LAW 

is  best.  But,  after  all,  there  is  no  objection  to  calling 
such  abstract  entities  fictitious,  if  we  bear  in  mind 
Ihering's  distinction  between  historical  and  dogmatic 
fictions.  This  fiction  of  an  abstract  entity  is  not  an  his- 
torical fiction,  like  that  of  the  casual  finder  in  trover,  or 
of  the  casual  ejector,  invented  to  bring  in  new  law  or  to 
extend  remedies,  but  it  is  used  to  classify  and  arrange  old 
and  acknowledged  law.1 

Corpora-  The  usual  form  of  a  juristic  person  is  a  corporation. 

Indeed,  corporations  are  the  only  juristic  persons  known 
to  the  Common  Law.2  What  is  a  corporation  ?  In  the 
first  place,  there  must  be  a  body  of  human  beings  united  for 
the  purpose  of  forwarding  certain  of  their  interests.  Sec- 
ondly, this  body  must  have  organs  through  which  it  acts; 
it  must  be  an  organized  body  of  men ;  neighbors  turning 
out  to  hunt  down  a  robber  do  not  form  a  corporation. 
The  interests  of  an  organized  body  of  men  cannot  be 
effectually  forwarded  unless  these  interests  are  protected 
by  the  State;  and  to  give  this  protection,  legal  rights 
must  be  created,  and  the  organization  through  which  the 
body  is  to  act  must  be  recognized  by  the  State.  If  a 
body  of  men  acts  through  an  organization  which  the  State 
does  not  recognize,  the  Law  will  not  give  effect  to  the 
act  as  the  act  of  the  organization,  though  it  may  be  the 
act  of  some  or  all  of  its  members.3 

"It  may  be  called  a  "rational  fiction."  See  14  Columbia  Law 
Rev.  469,  471. 

2  Except  the  State. 

*  Corporations  de  facto.  A  statute  has  enacted  that  an  organized 
body  of  men  shall  become  a  corporation  upon  performing  certain 
acts.  Sometimes  in  such  a  case  although  the  body  has  failed  to 
perform  the  acts,  the  Law  will  yet  accord  certain  of  the  rights  and 
impose  certain  of  the  duties  which  would  have  been  created  had  the 
acts  been  performed.  This  means  that  the  body  is  recognized  by 
the  State  as  a  corporation  for  certain  purposes,  but  not  for  all. 


LEGAL  PERSONS  51 

As  I  have  said,  to  effect  the  purposes  of  a  corporation, 
its  interests  must  be  protected  by  the  creation  of  rights. 
To  whom  shall  these  rights  be  given?  Whom  shall  the 
State  recognize  as  the  person  or  persons  on  whose  motion 
the  rights  are  to  be  exercised?  That  is,  whose  are  the 
rights? 

Putting  all  fictions  aside,  let  us  get  down  to  the  "hard 
pan"  of  fact.  A  corporation  is  an  organized  body  of 
men  to  which  the  State  has  given  powers  to  protect  its 
interests,  and  the  wills  which  put  these  powers  in  motion 
are  the  wills  of  certain  men  determined  according  to  the 
organization  of  the  corporation. 

How  is  this  state  of  things  to  be  brought  within  the 
scheme  of  rights  and  duties  upon  which  the  superstruc- 
ture of  the  Law  rests  ?  In  this  way.  The  powers  granted 
by  the  State  are  not  the  rights  of  the  men  whose  wills 
put  them  in  motion,  for  it  is  not  the  interests  of  those 
individual  men  that  are  protected;  but,  by  a  dogmatic 
fiction,  their  wills  are  attributed  to  the  corporation,  and 
it  is  the  corporation  that  has  the  rights. 

JNbw  it  is  to  be  observed,  that  thus  far  there  is  nothing 
peculiar  to  juristic  persons.  The  attribution  of  another's 
will  is  of  exactly  the  same  nature  as  that  which  takes  place 
when  the  will,  for  instance,  of  a  guardian  is  attributed 
to  an  infant.  How  far  this  attribution  is  allowed  to  occur 
in  the  one  or  the  other  class  of  cases  is  a  question  of 
positive  law,  but,  so  far  as  the  process  takes  place,  and 
by  whatever  name  it  is  called,  it  is  of  essentially  the  same 

Such  bodies  are  called  corporations  de  facto.  They  are  discussed 
by  my  colleague  in  the  Harvard  Law  School,  Professor  E.  H.  War- 
ren, in  two  valuable  articles  in  the  Harvard  Law  Review,  20 
H.L.R.  456;  21  H.L.R.  305. 


52     THE  NATURE  AND  SOURCES  OF  THE  LAW 

character.  With  all  legal  persons,  except  normal  human 
beings,1  there  is  the  same  fiction  of  attributing  the  will 
of  a  man  to  some  one  or  something  other  than  himself — 
it  matters  not  who  or  what  that  some  one  or  something 
else  is.  The  step  is  as  hard  to  take  and  no  harder, 
whether  he,  she,  or  it  be  an  idiot,  a  horse,  a  steam  tug,  or 
a  corporation.  Neither  the  idiot,  the  horse,  the  steam 
tug,  nor  the  corporation  has  a  real  will;  the  first  three 
no  more  than  the  latter.  But  with  the  juristic  person 
we  have  an  additional  fiction.  That  additional  fiction 
consists  in  forming  an  abstract  entity  to  which  the  wills 
of  men  may  be  attributed. 

is  a  cor-         This  is  the  common  view,  but  it  has  been  contended 
a  real          that  there  is  no  fiction  here,  that  the  corporation  is  a  real 

thing?  .  r 

thing.  Is  the  corporation  to  which  these  wills  of  indi- 
vidual men  are  attributed  a  real  thing,  or  only  a  thing 
by  fiction,  a  fictitious  entity  ?  If  it  is  a  fictitious  entity, 
we  have  a  double  fiction;  first  by  fiction  we  create  an 
entity,  and  then  by  a  second  fiction  we  attribute  to  it  the 
wills  of  individual  men.  If  the  corporation  is  a  real 
entity,  then  we  have  need  only  of  this  second  fiction. 

Whether  a  corporation  is  a  real  or  only  a  fictitious 
entity  is  a  question  which  I  shall  not  undertake  to  solve. 
I  fear  I  should  find  no  end  in  wandering  mazes  lost. 
According  to  an  old  saying,  everybody  is  born  either  a 
nominalist  or  a  realist.  And  what  is  true  of  all  the 
world  is  true  probably  of  my  readers.  I  shall  not  un- 
dertake to  supply  any  of  them  with  a  new  set  of  innate 
ideas.  And  I  shall  not  attempt  to  answer  the  question 
whether  corporations  are  realities  or  fictions,  because  to 

*  Excepting  also  supernatural  beings.     See  p.  39,  ante. 


LEGAL  PERSONS  53 

do  so  is  unnecessary  for  my  purposes.  The  facts  are  be- 
yond dispute;  the  State  imposes  duties  upon  people  for 
the  protection  of  the  interests  of  the  organized  bodies  of 
men  called  corporations,  and  the  rights  correlative  to 
these  duties  it  allows  to  be  set  in  motion  by  the  wills  of 
individual  men  determined  by  the  organization  of  the 
corporation,  which  wills  it  attributes  to  the  corporation. 
Whether  the  corporation  be  real  or  fictitious,  the  duties 
of  other  people  towards  it  and  the  wills  which  enforce 
the  rights  correlative  to  those  duties  are  the  sama  The 
Law  is  administered,  and  society  is  carried  on  in  precisely 
the  same  way  on  either  theory. 

It  should  be  observed  that  even  if  a  corporation  be  a 
real  thing,  it  is  yet  a  fictitious  person,  for  it  has  no  real 
will,  but  it  would  be  a  fictitious  person  only  as  an  idiot 
or  a  ship  is  a  fictitious  person.  The  reason  why  idiots 
and  ships  have  not  been  called  juristic  persons,  and  classed 
with  corporations,  is  that  in  the  Roman  and  the  Common 
Law  the  prevalent  idea  seems  to  have  been  that  corpora- 
tions were  fictitious  entities,  were  things  only  by  fiction, 
and  that,  therefore,  in  their  case,  in  distinction  from  the 
case  of  idiots  and  ships,  there  was  need,  as  I  have  said, 
of  a  double  fiction,  and  they  ought  to  be  put  under  a 
separate  head  and  distinguished  by  a  different  name,  viz. 
juristic  persons. 

Under  the  Roman  Law  there  was  little  discussion  as 
to  the  nature  of  corporations,  and  under  the  Common 
Law  there  has  been  little.  Such  discussion  is  alien  to 
the  eminently  practical  character  of  both  systems.  The 
prevailing  notion  has  undoubtedly  been  that  a  corpora- 


54  THE  NATURE  AND  (SOURCES  OF  THE  LAW 

tion  was  not  a  real  thing,  but  I  do  not  think  there  can 
be  said  to  be  any  settled  opinion  to  that  effect.1 
Has  a  cor-        Before  leaving  the  subject  I  ought  to  notice  a  theory 

Deration  ^  . 

a  real  which  of  late  years  has  grown  up  in  Germany,  and  which 

holds  not  only  that  a  corporation  is  a  real  thing,  but  that 
it  has  a  real  will.  Gierke,  who  is  the  chief  expounder 
of  this  theory,  declares  that  it  is  not  original  with  him, 
but  was  first  taught  by  Beseler.  He  confines  the  doctrine 
to  the  old  German  Law  and  admits  that  in  the  Roman 
system  the  corporation  was  a  fictitious  person;  indeed, 
he  maintains  that  view  with  no  little  warmth  against 
some  writers  who  had  attempted  to  give  real  personality 
to  the  Roman  corporation.2  He  believes  that  in  Germany 
the  old  national  view  and  the  Roman  have  been  struggling 
for  the  mastery,  and  that  the  former  is  getting  the  better 
of  the  contest.  His  view  will  be  found  set  forth  briefly 
in  the  article  by  him  on  Juristische  Person  in  Holtzen- 
dorff's  Lexicon. 

Assuming  that  a  corporation  is  a  real  thing,  the  ques- 
tion whether  it  can  have  a  real  will  or  not  depends  on 
whether  there  is  such  a  thing  as  a  general  will.  I  do  not 
believe  that  there  is.  There  may  be  agreeing  wills,  but 
not  a  collective  will;  a  will  belongs  to  an  individual. 
When  we  speak  of  the  will  of  the  majority  on  a  point, 
we  mean  that  on  that  point  the  wills  of  the  majority 
agree.  A  collective  will  is  a  figment.  To  get  rid  of  the 
fiction  of  an  attributed  will,  by  saying  that  a  corporation 

1  See  a  discussion  of  "Corporate  Personality"  by  A.  W.  Machen, 
in  24  Harvard  Law  Rev.  253,  347,  and  an  article  by  T.  Baty  in 
33  Harvard  Law  Rev.  358. 

*3  Gierke,  Deutsche  Genossenschaftsrecht,  131. 


LEGAL  PERSONS  55 

ha8  a  real  general  will,  is  to  drive  out  one  fiction  by 
another.1 

On  and  about  this  question  there  has  been  an  enormous 
number  of  pages  written.  But  difference  in  practical 
results  from  adopting  this  theory  there  seems  to  be  none. 
Under  it  acts  and  forbearances  are  imposed  on  men  as 
duties  for  the  purpose  of  protecting  the  interests  of  cor- 
porations; the  rights  corresponding  to  these  duties  are 
given  to  the  corporation;  the  actual  wills  by  which  in 
fact  these  rights  are  exercised  are  the  wills  of  men  desig- 
nated in  accordance  with  the  organization  of  the  corpora- 
tion and  the  positive  Law  of  the  State;  and  this  is  just 
what  happens  under  the  theory  of  the  Roman  and  the 
Common  Law.  In  short,  whether  the  corporation  is  a 
fictitious  entity,  or  whether  it  is  a  real  entity  with  no 
real  will,  or  whether,  according  to  Gierke's  theory,  it  is 
a  real  entity  with  a  real  will,  seems  to  be  a  matter  of  no 
practical  importance  or  interest.  On  each  theory  the 
duties  imposed  by  the  State  are  the  same,  and  the  persons 
on  whose  actual  wills  those  duties  are  enforced  are  the 
same.2 

I  have  spoken  of  the  rights  of  corporations.  As  to 
their  duties,  a  word  will  suffice.  The  State  imposes  legal 
duties  upon  corporations,  to  protect  the  rights  of  other 
persons,  including  the  rights  of  individual  members  of 
the  corporation.  How  the  State  will  enforce  these  duties 

*1  Windscheid,  Pand.   (9th  ed.)   §  49,  n.  8. 

"I  ought  to  add  that  the  lamented  Professor  F.  W.  Meitland  was 
a  convert  to  Gierke's  views.  See  the  introduction  to  his  transla- 
tion of  a  portion  of  Gierke's  Genossenschaftsrecht,  under  the  title 
of  Political  Theories  of  the  Middle  Ages;  also  essay  in  3  Collected 
Papers,  304.  No  one  holds  Maitland's  memory  in  more  respect  or 
affection  than  I,  but  it  must  be  remembered  that  his  greatness  lay 
in  historic  investigation,  not  in  dogmatic  speculation. 


56     THE  NATURE  AND  SOURCES  OF  THE  LAW 

is  matter  for  the  positive  Law  of  the  State.  It  makes  no 
difference  whether  the  corporation  is  a  fictitious  person, 
or  a  real  person  with  a  fictitious  will,  or  a  real  person 
with  a  real  will.  For  instance,  take  the  question  of  the 
liability  of  a  corporation  for  a  tort,  say  for  slander.  The 
corporation's  liability  or  non-liability  may  be  held  on 
either  theory.  The  existence  of  the  liability  or  non- 
liability depends  upon  the  positive  prescriptions  of  the 
Law. 

creation  Who  creates  the  abstraction  known  as  a  corporation? 

tionsrp  *  It  is  sometimes  said  that  all  corporations  are  creatures 
of  the  State.  This  is  not  literally  accurate.  Whenever 
men  come  together  for  a  common  purpose,  it  is  the  course 
of  human  nature  for  them  or  their  leaders  to  personify 
an  abstraction,  to  name  it,  and  to  provide  it  with  organs. 
Such  organized  bodies  may  be  of  every  degree  of  im- 
portance, from  the  Roman  Catholic  Church  down  to  the 
poker  club  that  meets  at  a  village  tavern. 

To  say  that  all  such  organizations  are  in  truth  creatures 
of  the  State,  because  they  exist  only  by  its  sufferance, 
might  be  unobjectionable,  if  the  control  of  the  State  over 
its  citizens  was  absolute.  If  it  had  the  power  of  pre- 
venting any  communication  of  thought  on  religious  sub- 
jects by  words  or  signs,  no  church  could  exist  in  the 
territory  of  that  State;  but  it  has  no  such  power;  and 
organized  societies  which  a  State  has  forbidden  to  exist 
have  often  continued  in  spite  of  its  efforts.  The  Catholic 
Church  existed  in  England  in  the  reign  of  Queen  Eliza- 
beth; the  Carbonari  existed  in  Italy  under  the  Austrian 
and  Bourbon  rules;  the  Knights  of  the  Golden  Circle 
existed  in  the  Northern  United  States  during  the  Civil 
War. 


LEGAL  PERSONS  57 

But  that  over  which  a  State  has  the  sole  authority  is 
the  making  of  a  corporation  into  a  juristic  person.  The 
State  may  not  have  created  a  corporation,  but  unless  it 
recognizes  it  and  protects  its  interests,  such  corporation 
is  not  a  juristic  person,  for  such  a  corporation  has  no 
legal  rights. 

The  term  "corporation  sole"  is  used  in  the  Common  corpora. 
Law.    When  a  man  who  has  rights  and  duties  by  virtue  sole 
of  holding  an  office  or  exercising  a  function,  dies,  one  of 
three  things  may  happen — the  rights  and  duties  may  come 
to  an  end,  or  they  may  pass  to  his  heirs,  or  they  may  pass 
to  his  successors.     Rights  and  duties  enjoyed  or  imposed 
by  virtue  of  an  office,  passing  to  heirs,  or  hereditary  offices, 
are  hardly  ever  created  at  the  present  day,  but  in  England 
a  few  have  come  down  from  early  times. 

In  some  cases  where  like  rights  are  enjoyed  by  succes- 
sive occupants  of  an  office,  a  corporation  sole  is  created. 
In  some  cases,  but  not  in  all.  Successive  clerks  of  a  city 
council  may  have  the  same  right,  as,  for  instance,  to  a  sal- 
ary, but  the  succession  of  such  clerks  does  not  usually  form 
a  corporation  sole.  Among  the  qualities  of  a  corporation 
sole,  which  distinguish  it  from  a  mere  succession  of  offi- 
cers or  persons  exercising  the  same  rights,  the  most  im- 
portant, apart  from  matters  of  procedure,  seem  to  be,  that 
if  a  corporation  sole  exists,  an  occupant  of  an  office  can 
generally  acquire  property  for  the  benefit  of  his  successors 
as  well  as  himself;  that  he  can  generally  recover  for  in- 
jury inflicted  on  property  pertaining  to  the  office  while 
such  property  was  in  the  hands  of  his  predecessor;  and 
that  he  can  sometimes  enter  into  a  contract  which  will  bind 
or  inure  to  the  advantage  of  his  successors. 

Whether  a  corporation  sole  is  in  any  case  created  is  a 


58     THE  NATURE  AND  SOURCES  OF  THE  LAW 

matter  for  the  positive  Law  of  any  particular  jurisdiction. 
They  are  not  uncommon.  A  bishop  of  the  English  Church 
is  a  corporation  sole ;  so  is  the  minister  of  a  Congregational 
parish  in  Massachusetts. 

A  corporation  sole  does  not  seem  to  be  a  fictitious  or 
juristic  person;  it  is  simply  a  series  of  natural  persons 
some  of  whose  rights  are  different  and  devolve  in  a  differ- 
ent way  from  those  of  natural  persons  in  general. 

Corporations  are,  as  I  have  said,  the  only  juristic  per- 
sons known  to  the  Common  Law.  Property  is  never  made 
into  a  juristic  person.  If  property  is  given  in  England 
or  in  the  United  States  for  charitable  uses,  it  is  always 
vested  in  some  man  or  corporation  which  holds  it  for  the 
charitable  uses,  and  is  the  subject  of  the  rights  and  duties 
concerning  it.  If  a  testator  devotes  property  to  a  char- 
itable purpose,  but  names  no  one  to  carry  out  the  purpose, 
the  title  to  the  property  vests  in  the  heir  or  executor  until 
some  other  trustee  is  appointed  to  take  it.  The  notion  of  a 
subjectless  right  or  duty  is  utterly  alien  to  the  Common 
Law.1 

stiftungen  But  in  Germany  there  are  juristic  persons  which  are  not 
corporations  and  which  have  no  members.  These  are 
known  as  Stiftungen  (foundations).  They  consist  of  prop- 
erty devoted  to  charitable  uses,  the  title  to  which  is  not 
vested  in  individuals  or  corporations.  As  this  legal  con- 
cept is  interesting  and  unfamiliar,  I  may  be  excused  for 
dwelling  on  it  a  moment. 

In  pagan  Rome,  eleemosynary  institutions  for  the  re- 
lief of  the  poor  and  suffering,  so  far  as  they  existed  at 
all,  were  institutions  of  the  State,  and  their  administra- 

1But  cf.  p.  46,  ante. 


LEGAL  PERSONS  59 

tion  was  part  of  the  functions  of  the  State.  They  were 
simply  portions  of  the  machinery  of  government.  It  was 
only  upon  the  establishment  of  the  Christian  Church  that 
institutions  of  the  kind  independent  of  the  State  came 
into  existence.  They  were  probably  regarded  as  corpora- 
tions.1 

All  fiction  apart,  what  actually  takes  place  in  case  of 
a  stiftung?  Persons  are  subjected  to  duties  with  refer- 
ence to  property  which  has  been  devoted  to  charitable 
purposes.  These  duties  are  enforced  on  the  motion  of 
certain  persons,  but  these  persons  have  no  rights,  for  it  is 
not  their  interests  which  are  protected,  nor  are  there  any 
other  persons  to  whom  their  wills  can  be  attributed ;  they 
exercise  their  wills  not  for  the  sake  of  any  definite  per- 
sons, but  for  the  sake  of  certain  objects ;  that  is,  in  the  case 
of  a  stiftung  (which,  as  I  have  said,  is  a  conception  un- 
known to  the  Common  Law)  there  are  duties,  to  which 
there  are  no  correspondent  rights  residing  in  definite  men 
or  corporations.  By  a  dogmatic  fiction  the  property  in 
question  is  constituted  a  juristic  person,  and  the  fiction  is 
a  justifiable  and  beneficent  one,  because  the  duties  which 
exist  when  a  stiftung  is  created  are  of  the  same  kind  as 
those  which  exist  as  between  natural  persons,  and  the  em- 
ployment of  the  fiction  enables  them  to  be  classified  and 
treated  together. 

The  view  taken  in  the  preceding  section  as  to  the  actual 
state  of  facts  in  the  case  of  a  stiftung  agrees,  I  think,  in 
substance  with  the  theory  advanced  by  Brinz  in  his  Lehr- 

1  See  Appendix  I.  There  may,  however,  have  been  gifts  for  such 
purposes  to  collegia,  or  guilds,  under  the  pagan  emperors.  S.  Dill, 
Roman  Society  from  Nero  to  Marcus  Aurelius,  pp.  254-255,  282. 
For  such  gifts  to  municipalities,  see  ib.  pp.  193-195,  224. 


60     THE  NATURE  AND  SOURCES  OF  THE  LAW 

buck  der  PandeMen.1  But  Brinz  denied  that  a  stiftung 
was  a  juristic  person.  He  maintained  that  there  could  be 
legal  duties  without  legal  rights,  and  that  the  stiftung 
was  an  instance  of  it.  This  theory  has  excited  a  hot,  and, 
more  Germanico,  a  voluminous  controversy.  Brinz's  op- 
ponents declare  that  a  legal  duty  without  a  legal  right 
is  unthinkable,  and  that  a  legal  right  without  a  subject 
is  equally  unthinkable,  and  that  therefore  the  allowance 
of  a  stiftung  necessarily  carries  with  it  the  allowance  of 
a  juristic  person.  We  may  congratulate  ourselves  that  in 
the  Common  Law  no  such  controversy  can  arise,  for  the 
conception  of  stiftungen  finds  no  place  in  our  system. 

A  word  with  regard  to  two  entities  which  are  found 
in  the  Roman  Law,  and  which,  perhaps,  should  be  in- 
cluded among  juristic  persons,  Fiscus  and  Hereditas 
jacens. 

The  Originally  a  basket  of  woven  twigs  used  for  keeping 

money,  the  term  fiscus  came  to  mean  the  imperial  treasury, 
in  distinction  from  the  cerarium  or  public  treasury,  but 
in  course  of  time  the  fisc  absorbed  the  cerarium  and  became 
the  treasury  of  the  State.  The  fisc  is  never  called  a  per- 
son, but  passages  in  the  Digest  and  the  Code  show  it  to 
us  as  a  creditor  and  a  debtor  and  a  party  to  a  suit;  that 
is,  as  a  subject  of  legal  rights  and  duties.  The  Romans 
do  not  seem  to  have  thought  much  on  the  personality  of 
the  fisc,  or  to  have  compared  it  with  that  of  a  corporation. 
They  appear  to  have  considered  it  distinct  from  the  State. 
In  modern  times,  the  term  continues  to  be  used  in  some 
systems  of  Law  derived  from  the  Roman,  and  in  them 
the  fisc  is  now  defined  as  the  State  in  its  relation  to  prop- 
erty. If  the  term  is  to  be  retained,  this  is  a  good  defini- 
1  Vol.  2,  §  228,  and  elsewhere. 


LEGAL  PERSONS  61 

tion,  but  in  this  sense  it  seems  superfluous,  and  that  it  is 
best  to  do  away  with  the  word  as  a  legal  term  altogether, 
and  to  speak  of  the  State  as  the  subject  of  those  rights  and 
duties  which  have  been  attached  to  the  fisc.1 

In  the  interval  between  the  death  of  the  ancestor  and 
the  moment  when  the  heir  accepted  the  inheritance,  the 
Romans  placed  the  hereditas,  commonly  known  by  the 
civilians  as  the  hereditas  jacens.  This  hereditas  was  an 
abstraction,  and  probably,  to  a  limited  extent  at  least,  a 
juristic  person.  There  is  nothing  corresponding  to  the 
hereditas  jacens  in  the  Common  Law.2 

One  point  more  as  to  legal  rights  may  be  noticed, 


T1       .  i  ,  .  doctrine 

Ihering,  who  is  always  worth  listening  to,  even  if  one   of  passive 

does  not  agree  with  him,  while,  in  opposition  to  Brinz, 

he  denies  most  strenuously  the  conceivability  of  a  right 

without  a  subject,  has  a  view  of  his  own  on  rights  not 

only  of  juristic  persons  but  of  all  legal  persons,  which 

he  has  elaborated  at  great  length.3     He  divides  a  right 

into  two  sides,  —  its  active  side,  "the  legal  position  which 

the  right  has  as  a  result  for  the  one  to  whom  it  belongs"  ; 

and  the  passive  side,  "the  position  of  legal  obligation  or 

limitation  in  which  a  person  or  thing  is  placed  through 

the  right."    He  admits  that  as  a  permanent  situation  one 

side  cannot  exist  without  the  other,  but  he  insists  that 

temporarily  the  passive  side  can  exist  without  the  active, 

and  that  this  temporary  divorce  may  take  place,  either  in 

the  interval  between  the  disappearance  of  one  subject  and 

the  appearance  of  another,  or,  in  the  case  of  a  right  on  a 

10n  the  fisc  and  its  character,  see  3  Gierke,  Deutsche  Genossen- 
schaftsrecht,  58-61;  1  Karlowa,  Rom.  Rechtsgeschichte,  §  64;  1 
Holtzendorff,  Rechtslex.  sub.  voc. 

2  On  the  hereditas  jacens,  see  Appendix  II. 

'Passive  Wirkungen  der  Rechte,  10  Jahrb.  f.  Dogm.  387-580. 


62     THE  NATURE  AND  SOURCES  OF  THE  LAW 

condition  precedent,  before  the  condition  is  fulfilled.  He 
compares  such  a  right  to  a  bed  which  has  been  made  up, 
but  which  is  yet  empty;  and  he  puts  a  case  like  this: 
A.  owns  land  and,  as  such  owner,  has  a  right  of  way  over 
land  of  B. ;  A.  abandons  the  land,  so  that  it  is  without 
an  owner,  which  state  of  things  can  occur  in  the  Civil 
Law,  though  with  us  a  man  who  has  become  owner  of 
land  cannot  renounce  ownership.  Here,  Ihering  says, 
there  is  no  longer  any  one  to  whom  the  right  of  way  be- 
longs, but  the  right  still  exists  on  its  passive  side,  and 
when  the  property  which  was  abandoned  is  again  occupied, 
say  by  C.,  then  the  right  comes  again  into  full  existence 
on  both  sides.  The  case  of  the  Tiereditas  jacens  furnishes 
him  with  another  instance. 

One  criticises  a  writer  of  Ihering's  ability  with  dif- 
fidence, but  has  he  not  been  deceived  here  by  a  form  of 
words  ?  Certain  facts  have  given  A.,  the  former  occupier, 
a  right  to  deal  with  B.'s  land  in  a  certain  way,  to  put 
it  to  a  certain  use,  to  walk  over  it;  and  certain  facts 
give  C.,  the  present  occupier  of  the  premises  abandoned 
by  A.,  a  similar  right  to  deal  with  B.'s  land, — a  similar 
right,  but  not  the  same  right.  The  first  right  has  ended ; 
a  new  one  has  begun. 

Even  if  we  regard  the  right  of  C.  as  the  same  thing 
as  the  right  of  A.,  yet,  in  the  interval  between  A.'s  occu- 
pation and  C.'s  occupation,  if  there  is  a  suspension  of  the 
right,  it  is  of  the  whole  right, — not  only  of  the  active  side 
but  of  the  passive  side  as  well.  Both  active  and  passive 
sides  of  the  right  must  come  into  existence  together;  in- 
deed, the  separation  between  the  two  sides  which  Ihering 
maintains,  and  the  possibility  of  one  existing  without 
the  other,  is  unthinkable.  Ihering  himself  admits  that 


LEGAL  PERSONS  63 

it  is  unthinkable  as  a  permanent  condition,  and,  in  truth, 
it  is  just  as  unthinkable  as  a  temporary  condition.  There 
cannot,  even  temporarily,  be  an  inside  without  an  out- 
side, a  front  without  a  back. 

But,  it  may  be  said,  in  the  case  supposed,  let  us  as- 
sume that  after  A.  has  abandoned  his  land,  and  before 
C.  has  come  into  occupation,  B.  has  obstructed  the  way. 
Cannot  C.,  after  he  has  come  into  occupation,  compel 
B.  to  take  down  the  obstruction,  or  to  pay  damages  for 
having  put  it  up?  I  am  not  sufficiently  familiar  with, 
the  Civil  Law  to  know  whether  this  is  the  case,  but  cer- 
tainly there  might  be  a  system  of  law  in  which  it  was  so. 
But  what  would  this  prove  ?  Only  that  B.  may  be  under 
a  legal  duty;  that  is,  may  be  commanded  by  the  State  to 
do  certain  acts  which  C.  has  a  right  to  have  done,  and  this 
legal  duty  may  arise  from  certain  facts  (including  acts  by 
B.)  having  happened  before  C.  acquired  any  right.  But 
this  does  not  show  that  B.  was  under  a  legal  duty  to  C. 
before  C.  had  any  right,  but  only  that  among  the  acts, 
forbearances,  and  events  which  cause  a  right  to  spring 
into  existence,  past  acts  and  forbearances  are  often  in- 
cluded, a  proposition  obvious  enough. 

Although  Ihering  is  careful  to  indicate  that  he  is 
speaking  of  rechte  in  the  subjective  sense,  or,  as  we  say, 
rights,  it  seems  possible  that  he  has  been  misled  by  the 
ambiguous  meaning  of  "recht"  l  Recht,  he  says,  does  not 
exist  for  itself,  but  to  forward  certain  purposes, — that  the 
purpose  is  often  a  continuing  one,  intended,  for  instance, 
to  last  beyond  the  life  of  any  particular  individual.  True 
of  recht  in  the  objective  sense,  or,  as  we  say,  Law.  Rules 

»P.  8.  ante. 


64      THE  NATURE  AND  SOURCES  OF  THE  LAW 

of  Law  may  be  established  for  continuing  purposes ;  and  to 
give  effect  to  these  purposes,  rights  (rechte  im,  subjectiven 
sinne)  are  given  to  successive  individuals,  but  there  is  no 
need  that  these  rights  themselves  be  continuous. 


CHAPTER  III 


THE  STATE 

IN  theology  it  may  be  that  the  chief  artificial  person  The  state 
is  the  Church ;  but  in  Jurisprudence  the  chief  artificial  ciai  person 
person  is  the  State.     The  State  is  an  artificial  person 
created  in  order  that,  by  assuming  it  as  the  entity  whose 
organs  are  the  men  engaged  in  protecting  a  mass  of  human 
beings  from  external  and  internal  fraud  and  violence, 
a  unity  of  operation  may  be  given  to  those  organs. 

Austin,  in  his  "Province  of  Jurisprudence  Deter- 
mined," as  one  might  suppose  from  his  hatred  of  mysti- 
cism and  unreality,  will  have  nothing  to  do  with  artificial 
persons.1  "The  State,"  according  to  him,  "is  usually 
synonymous  with  'the  sovereign.'  It  denotes  the  indi- 
vidual person,  or  the  body  of  individual  persons,  which 
bears  the  supreme  powers  in  an  independent  political 
society."  I  should  be  glad  if  I  could  follow  Austin  here, 
and  get  rid  of  the  State  altogether  as  a  fictitious  entity; 
if  we  could  take  "State"  as  simply  an  equivalent  for  the 
whole  number  of  men  whose  commands  are  obeyed  in  a 
given  community ;  but  it  seems  to  me  this  cannot  be  done, 
and  that  scientific  Jurisprudence  will  be  right  in  following 
the  popular  feeling  and  seeing,  behind  the  individual  man 
or  men  who  "bear  the  supreme  powers"  in  any  commu- 

*1  Jur.  (4thed.)  249,  note. 
65 


66      THE  NATURE  AND  SOURCES  OF  THE  LAW 

nity,  the  abstract  conception  of  the  State  of  whom  those 
men  are  to  be  deemed  the  organs. 

I  will  try  to  explain  what  I  mean.  It  is  conceivable 
that  a  number  of  men  may  obey  the  commands  of  an  in- 
dividual simply  as  being  that  individual.  Not  only  is  it 
conceivable,  but  in  the  history  of  the  world  there  is  reason 
to  suppose  that  this  has  actually  happened.  But  in  the 
present  generation,  in  all  civilized  and  half-civilized  coun- 
tries, and  in  many  barbarous  communities,  even  when  all 
the  functions  of  government  are  in  the  hands  or  under 
the  control  of  one  man,  yet  he  is  obeyed  not  simply  as 
Abdul-Aziz,  or  as  Crazy  Horse,  but  as  Sultan  of  Turkey, 
or  as  Chief  of  the  Pottawottamies.  At  any  rate,  when 
there  is  any  binding  rule  for  the  succession  to  absolute 
power  upon  the  death  of  the  present  holder,  we  have  an 
entity  other  and  greater  than  the  individual  Sultan  or 
Chief,  we  have  the  State;  as,  in  the  most  primitive  of 
organizations,  the  family,  the  individuals  who  compose  it 
are  under  the  rule  of  one  person,  not  because  he  is  Noah 
or  Abraham,  but  because  he  is  the  father;  and  on  his 
death  the  organization  does  not  come  to  an  end,  but  the 
power  over  the  family  passes  to  another  person,  often  in 
accordance  with  rules  of  great  complexity. 

But  let  us  take  a  case  where  it  is  even  clearer  that 
there  is  some  recognized  power  behind  that  of  the  mere 
sum  of  the  so-called  sovereign  individuals.  If  we  assume, 
with  Austin,  that  Parliament  is  the  sovereign  of  England, 
that  does  not  mean  that  the  individuals  who  happen  to 
be  King,  Peers,  and  Representatives  of  the  Commons, 
as  an  unorganized  horde,  or  even  a  majority  of  them, 
are  the  sovereigns  of  England,  but  that  the  King,  the 
House  of  Lords,  and  the  House  of  Commons,  acting 


THE  STATE  67 

separately  and  in  accordance  with  highly  artificial  rules, 
is  the  sovereign.  The  abstract  entity  of  the  State  which 
creates  those  rules  lies  behind  the  sovereign,  who  is  only 
its  organ. 

Who  creates  the  State,  and  on  what  basis  does  its  con-  creators 
tinuous  existence  rest  ?  In  every  aggregation  of  men  there  state6 
are  some  of  the  number  who  impress  their  wills  upon  the 
others,  who  are  habitually  obeyed  by  the  others,  and  who 
are,  in  truth,  the  rulers  of  the  society.  The  sources  from 
which  their  authority  flows  are  of  the  most  diverse  char- 
acter. They  may  be,  or  may  pretend  to  be,  divinely  in- 
spired. It  may  be  their  physical  strength,  their  wisdom, 
their  cunning,  their  virtues,  their  vices, — oftenest,  per- 
haps, their  assiduity  and  persistence, — that  have  given 
them  their  power.  The  sources  of  this  power  are,  indeed, 
so  various,  and  its  mode  of  action  so  subtle  and  often  un- 
known even  by  those  who  exercise  it,  that  it  is  impossible 
to  define  or  closely  trace  it. 

Such  rulers  may  have  official  position,  but  often  they 
are  without  it.  A  king-maker  or  president-maker,  the 
favorite  of  a  monarch,  the  boss  of  State  politics,  may 
pride  himself  on  his  private  station.  Nor  does  the  ma- 
chinery of  government  make  any  great  difference.  The 
real  rulers  of  a  country  are  probably  not  much  more 
numerous  in  a  democracy  than  in  a  monarchy.  In  a  gov- 
ernment carried  on  by  parties,  which  seems  the  only  means 
yet  discovered  by  which,  in  republics  or  limited  monar- 
chies, government  can  be  carried  on  with  tolerable  success, 
the  subjection  of  thought  and  will  to  party  leaders  is  ex- 
treme. The  mistakes  and  disasters  that  have  occurred, 
by  attempting  to  carry  into  practice  the  theory  that  the 
persons  in  whom  is  vested  the  machinery  of  government 


68 

are  the  real  rulers  of  a  country,  would  be  ludicrous,  if  the 
subject  was  not  so  serious.  The  condition  of  affairs,  in 
many  of  the  cities  of  the  United  States,  is  a  good  example 
of  the  evil.1 

These  rulers,  sometimes  suddenly  and  obviously,  as, 
for  instance,  in  the  establishment,  by  a  successful  re- 
bellion, of  an  independent  State,  but  oftener  by  degrees 
and  obscurely,  create  or  uphold,  by  personification,  an 
abstract  entity  and  impose  a  belief  in  it  on  the  mass  of 
which  they  form  a  part ;  and  they  bring  this  abstract  per- 
sonality to  play  a  part  in  real  life  by  giving  it  as  organs 
real  human  beings,  bound  together  in  their  action  by  arti- 
ficial rules. 

It  is  sometimes  said  that  the  State  is  the  creature  of 
the  people.  This  is  untrue,  if  it  is  meant  that,  as  a  fact, 
the  people  uphold  it.  The  people,  in  that,  as  in  other 
things,  exercise  no  power  against  those  to  whom  they 
have  subjected  their  wills.  The  people  no  more  have 
created  and  uphold  the  State  because  they  have  the 
physical  strength  to  kill  their  rulers,  than  the  horses  of 
a  regiment  of  cavalry  have  created  and  uphold  the  regi- 
ment because  they  have  the  physical  strength  to  demolish 
their  riders. 

It  must  be  borne  in  mind,  however,  that  the  creation 
and  upholding  of  the  personified  abstraction  of  the  State, 
and  the  furnishing  it  with  organs,  react  powerfully  on 
the  rulers  of  the  people.  The  fact  that  a  person  is  an 
official  of  the  State  has  some  tendency  to  make  him  not 
only  a  formal  but  a  real  ruler;  the  existence  of  the  ma- 
chinery furnishes  an  obstacle  to  change;  and  the  leaders 
have  their  own  desires  and  imaginations  profoundly  af- 
1  See  A.  M.  Kales,  Unpopular  Government  in  the  U.  S.,  Chap.  II. 


THE  STATE  69 

fected  by  the  existence,  especially  the  long-continued  ex- 
istence, of  the  belief  in  the  organized  personality  of  the 
State. 

To  satisfy  their  social  instincts  or  desires,  to  accom- 
plish objects  which  they  could  not  singly  achieve,  these 
ruling  spirits  make  this  abstraction  and  personify  it.  In 
no  other  way  could  a  body  of  rulers  so  changing,  so 
indeterminable,  effect  their  object.  This  personification 
of  an  abstraction,  the  naming  of  it, — family,  village, 
tribe,  city,  state, — and  the  giving  to  it  human  beings  as 
organs,  seems  a  necessity  of  human  existence.  It  is,  at 
•  any  rate,  the  way  in  which  the  world  has  developed.  The 
Law  of  an  organized  society  assumes  the  existence  of  that 
society;  to  deny  it  would  be  to  commit  suicide. 

This  use  of  a  personified  abstraction  to  give  coherence 
and  continuance  to  the  efforts  of  the  rulers  is,  as  I  have 
said,  almost,  if  not  quite,  a  necessity  of  human  existence, 
but,  like  other  necessary  things,  it  has  its  good  and 
its  evil  side.  On  the  one  hand,  it  has  enormously  forti- 
fied altruism  under  the  guise  of  patriotism.  That  one 
should  sacrifice  his  life  for  the  greatest  good  of  the  greatest 
number,  has  always  been  a  hard  saying  both  to  the  head 
and  heart,  but  many  have  found  it  sweet  to  die  for  the 
personified  patria.  Yet,  on  the  other  hand,  the  idea  of 
the  State  is  merely  a  device  by  which  certain  men — kings, 
governors,  voters,  judges,  tax-gatherers,  hangmen — are 
brought  into  concerted  action  for  the  benefit  of  human 
beings,  and  the  notion  that  the  State  has  a  value  apart 
from  the  men  and  women  who  compose  it  and  will  compose 
it,  is  a  superstition. 

Whether  the  power  of  the  State  is  subject  to  any  legal  power  of 
limitation,  is  a  matter  which  has  been  much  discussed. 


70 


THE  NATURE  AND  SOURCES  OF  THE  LAW 


Theory  of 
divine 
origin  of 
the  State 


The  true  view  seems  to  be  that  the  power  of  the  State 
is  unlimited,  so  far  as  is  consistent  with  the  abstract  idea, 
which  is  the  State;  its  organs — legislative,  judicial,  and 
administrative — exist  only  to  express  its  will,  and  they 
cannot  contradict  it ;  but,  after  all,  the  State  is  but  a  per- 
sonified abstraction, — it  is  an  idol,  a  dumb  idol,  whose  use 
is  to  give  a  title  to  its  law-making  and  judgment-giving 
priests;  and  the  real  rulers  of  the  congeries  of  men,  who 
are  the  members  of  the  State,  can  limit  the  attribution  to 
it  of  will. 

I  believe  that  the  State  is  an  abstraction  created  and 
furnished  with  organs  by  the  real  rulers  of  society.  But 
it  may  tend  to  bring  out  the  true  idea  of  the  State  to 
consider  some  of  the  theories  that  have  at  various  times 
prevailed  as  to  its  origin  and  the  source  of  its  authority. 

First.  That  the  organization  of  the  State  rests  on 
the  will  of  God.  Of  course,  in  a  sense,  every  believer  in 
a  personal  God  must  believe  that  all  things  which  exist, 
including  the  organs  of  the  State,  exist  by  His  will. 
But  this  is  not  what  is  meant.  Nor,  again,  is  it  meant 
that  the  revealed  word  of  God  or  the  dictates  of  natural 
religion  prescribe  an  obedience  to  the  commands  of  the 
organized  body  called  the  State.  This  may  well  be.  This 
duty  to  obey  the  commands  of  an  existing  organized  body 
calls  for  obedience  to  any  new  government  which  has 
de  facto  established  itself  in  place  of  an  old, — for  instance, 
in  turn  to  the  kingdoms,  republics,  and  empires  which  have 
succeeded  each  other  in  France.  While  the  revolutionary 
change  is  going  on,  there  is  room  for  no  little  casuistry, 
but  when  the  change  is  completed,  the  duty  to  obey  an 
existing  government  calls  for  allegiance  to  the  new  gov- 
ernment. 


THE  STATE  71 ' 

The  proposition  that  the  organization  of  the  State 
rests  on  the  will  of  God  calls  for  the  belief  that  a  special 
form  of  organization — monarchical,  for  instance,  or  federal 
— is  commanded  by  the  Deity,  and  cannot  be  altered  with- 
out sin.  But  if  the  will  of  God  is  the  origin  of  the  form 
of  State  organization,  it  must  be  His  revealed  will,  for 
certainly  that  Parliament  shall  consist  of  King,  Lords, 
and  Commons,  or  that  the  President's  veto  can  be  over- 
ridden by  a  two-thirds  vote  of  both  Houses,  are  doctrines 
not  derivable  from  the  light  of  natural  religion;  and  as 
to  revealed  religion,  no  one,  at  the  present  day,  is  likely 
to  seek  and  find  in  the  divine  oracles  a  rule  in  favor  of  a 
single  Chamber  or  of  an  hereditary  nobility.  The  true 
doctrine  has  been  well  expressed  thus:  "The  command  of 
God  does  not  appear  as  a  ground  of  law,  but  only  raises 
the  legal  duty  towards  the  lawful  government  into  a 
religious  duty." 

Undoubtedly  the  ruling  spirits  of  society  in  forming 
a  government  have  often  claimed  to  act  under  divine  guid- 
ance, and  this  claim  has  been  believed  in,  not  only  by 
the  mass  of  the  community,  but  often  by  the  rulers  them- 
selves; and  further,  it  is  this  belief  that  has  given  them 
their  power;  but  in  such  cases  it  has  been  the  will  of 
the  rulers  that  has  really  organized  the  State.  The  organ- 
ization of  the  State  was  the  same  whether  the  rulers  who 
created  it  had  or  had  not  a  revelation  from  above.  Some 
of  those  who  have  most  confidently  asserted  the  divine 
origin  of  a  State  which  they  liked  would  be  the  first  to 
deny  the  inspiration  of  Numa  or  Joseph  Smith. 

Second.     That  might  is  right.     The  objection  felt  to  "Might 
this  proposition  rests  on  the  ambiguity  of  the  word  "right." 
If  by  "right"  is  meant  what  is  morally  right,  or  in  ae- 


72 

cordance  with  justice,  then  the  proposition  is  false.  If, 
on  the  other  hand,  it  is  meant  that  a  man's  legal  rights 
depend  upon  the  power  of  the  State  to  protect  them,  the 
expression  is  well  enough,  and  yet,  even  in  this  latter 
sense,  it  is  in  danger  of  being  misunderstood.  This  might 
which  creates  the  State  is  not  the  might  exercised  by  its 
organs ;  it  is  the  might  of  the  rulers  who  have  created  and 
uphold  it. 

The  That  the  State  is  founded  on  contract.     If  by  "con- 

contract  tract"  anything  more  is  meant  than  the  recognition  of  a 
state  of  fact  by  present  opinion,  it  can  hardly  nowadays 
be  necessary  to  labor  on  the  refutation  of  such  a  notion. 
The  theory  of  the  original  social  contract  has  been  the 
lay  figure  set  up  by  recent  writers  on  political  subjects 
only  that  they  might  have  the  satisfaction  of  knocking 
it  over.  Austin's  laborious  demolition  of  it  has  done  the 
work,  if  at  wearisome  length,  yet  effectually  and  once  for 
all.1  For  us  who  are  considering  not  what  fancies  may 
be  dreamed  in  order  to  tabulate  the  facts  in  accordance 
with  a  preconceived  system,  but  what  the  facts  really 
were  and  are,  it  is  enough  to  say  that  no  one  of  the  de- 
fenders of  the  theory  of  the  original  social  contract  pre- 
tends that  there  ever,  in  truth,  was  such  a  contract.2 

Indeed,  since  Kant's  time,  few  have  been  willing  to 
put  forth  the  notion  of  an  original  social  contract  in  an  un' 
disguised  form,  and  its  adherents  have  clothed  it  in  the 
garb  which  Kant  gave  it.  He  defined  the  original  social 
contract  as  "properly  only  an  outward  mode  of  repre- 
senting the  idea  by  which  the  rightfulness  of  the  process 

»1  Jur.   (4th  ed.)   309-335. 

'But  see  16  Jour.  Comp.  Leg.    (n.  s.)    322. 


THE  STATE  73 

of  organizing  the  Constitution  may  be  made  conceivable."  * 
The  phrase  is  not  clear,  but  the  line  of  his  reasoning 
seems  to  be  this:  "The  organization  of  the  State  was 
rightful."  "I  deny  it"  "I  will  make  you  understand 
it.  I  say  that  the  ancestors  of  the  present  members  of 
every  organized  political  society  made  a  contract  with 
each  other  by  which  each  released  certain  rights  and 
created  the  present  organization  of  the  State:  that  being 
so,  you  must  admit,  must  you  not,  that  the  organization 
of  the  State  was  rightful  ?"  "Perhaps  so,  if  what  you  say 
as  to  the  original  contract  is  true ;  but  is  it  true  ?"  "No, 
it  is  not  in  the  least  true,  but  I  have  told  it  to  you  in 
order  that  you  might  conceive  the  rightfulness  of  the  or- 
ganization of  the  State."  Austin  certainly  has  a  better 
excuse  for  his  roughness  than  he  sometimes  has  when  he 
attacks  "the  conceit  of  an  original  covenant  which  never 
was  made  anywhere,  but  which  is  the  necessary  basis  of 
political  government  and  society."  2 

Perhaps  what  Kant  means  is  that  no  organization  of 
a  political  society  can  be  regarded  as  good  if  not  such 
as  it  may  reasonably  be  supposed  the  original  members 
of  society  would  have  agreed  with  each  other  to  make, 
had  they  been  so  asked,  or,  in  other  words,  that  the  test 
for  the  goodness  of  an  organization  of  society  is  its  con- 
formity with  such  a  contract  concerning  it  as  it  may 
be  assumed  the  original  members  of  the  society  would 
have  made,  had  they  made  any.  If  this  be  his  meaning, 
his  expression  of  it  is  not  felicitous.  He  cannot  mean  to 
say  that  no  organized  political  body,  no  State,  can  exist 

1Kant,  Rechtslehre,  (Philosophy  of  Law)  sec.  47.  Hastie's  Trans. 
p.  169. 

'  P.  334,  note. 


74     THE  NATURE  AND  SOURCES  OF  THE  LAW 

unless  it  is  one  which  its  members,  as  wise  men,  would 
have  contracted  to  create,  and  it  would  seem,  therefore, 
that  his  meaning  must  be  that  all  forms  of  government  are 
pernicious  which  are  not  such  as  would  originally  have 
been  entered  into  by  wise  men;  and  this  does  appear  to 
be  what  he  means.  "This  [the  original  social  contract], 
however,"  he  says,  "is  but  a  mere  idea  of  the  reason; 
possessing,  nevertheless,  an  indubitable  (practical)  reality 
in  this  respect,  that  it  obliges  every  legislator  to  enact 
his  laws  in  such  a  manner  as  they  might  have  originated 
in  the  united  will  of  the  people."  *  This  may  or  may  not 
be  the  duty  of  a  legislator,  but  there  seems  no  need  of 
invoking  the  fiction  of  an  original  compact  to  enforce  it. 
It  would  be  simpler  to  say  (and  quite  as  true)  that  the 
organization  of  a  State  is  bad,  for  which  its  present 
members  cannot  be  imagined  as  entering  into  a  contract. 
Sever-  Much  has  been  said  and  written  about  sovereignty.  I 

do  not  deny  the  interest  of  the  topic,  nor,  from  some 
points  of  view,  its  importance ;  but  from  the  point  of  view 
of  Law  and  Jurisprudence,  I  think  its  importance  has 
been  exaggerated. 

Putting  aside  the  cases  where  a  number  of  people 
habitually  subject  themselves  to  one  man  simply  as  ao 
individual,  there  are  two  forms  of  political  organiza- 
tion. First.  All  political  power  is  formally  collected 
into  the  hands  of  one  man,  considered  as  King  or  Chief, 
determined  by  artificial  rules  of  succession,  a  man  clothed 
with  a  persona,  like  what  is  called  in  the  Common  Law  a 
corporation  sole.2  Second.  All  political  powers  are  given 

1Ueber  den  Gemeinspruch,  Das  mag  in  der  Theorie  richtig  sein, 
II,  Folgerung. 
"P.  57.  ante. 


THE  STATE  75 

to  a  body  of  men  organized  in  a  particular  way.  In  the 
first  case,  there  is  a  sovereign  and  subjects;  in  the  second, 
a  commonwealth  and  citizens. 

Of  the  second  type  were  the  Greek  cities  and  are  most 
of  the  political  organizations  which  have  been  created 
in  modern  times,  but  in  many  of  the  countries  of  Europe, 
the  first  was  the  condition  of  things  which  existed,  or, 
in  the  opinion  of  the  person  calling  himself  Lord  or  King, 
existed, — the  Prince  of  the  "Leviathan"  *  is  the  ideal  of 
such  a  ruler;  and  we  find  in  so-called  limited  monarchies 
a  nomenclature  continuing  which  is  derived  from  the  first 
condition  of  things,  although  in  truth  the  political  organi- 
zations now  have  the  second  shape.  Thus,  in  the  Kingdom 
of  Great  Britain  and  Ireland,  the  King  is  not,  and  does 
not  believe  himself  to  be,  the  sole  holder  of  political  power ; 
yet  he  is  styled  the  Sovereign;  the  Army  and  Navy  are 
called  His  Army  and  Navy.  So  in  international  matters, 
treaties  between  nations  profess  to  be  made  between  His 
Catholic  Majesty  and  His  Britannic  Majesty. 

But  this,  though  a  popular  use,  is  not  the  scientific 
use  of  the  term  "sovereign."  Austin  "with  great  con- 
cision," as  Sir  Henry  Maine  says,  defines  "sovereign" 
thus:  "If  a  determinate  human  superior,  not  in  a  habit 
of  obedience  to  a  like  superior,  receive  habitual  obedience 
from  the  bulk  of  a  given  society,  that  determinate  superior 
is  sovereign  in  that  society,  and  the  society  (including 
the  superior)  is  a  society  political  and  independent.  To 
that  determinate  superior,  the  other  members  of  the  society 
are  subject;  or  on  that  determinate  superior,  the  other 
members  of  the  society  are  dependent.  The  position  of 

1  "Leviathan,   or   the   Matter,    Form   and    Power    of   a    Common- 
wealth," by  Thomas  Hobbes  (1651). 


76     THE  NATURE  AND  SOURCES  OF  THE  LAW 

its  other  members  towards  that  determinate  superior,  is  a 
state  of  subjection,  or  a  state  of  dependence.  The  mutual 
relation  which  subsists  between  that  superior  and  them, 
may  be  styled  the  relation  of  sovereign  and  subject,  or 
the  relation  of  sovereignty  and  subjection."  l  And  he 
goes  on  to  point  out  that  it  is  only  in  an  absolute  monarchy 
that  the  sovereignty  is  vested  in  one  person,  and  that  in 
all  others,  be  they  called  limited  monarchies,  oligarchies, 
aristocracies,  or  democracies,  the  sovereignty  is  held  by 
a  number  of  persons. 

But  Austin  fails  to  bring  into  prominence  the  fact  that 
whenever  the  power  is  not  vested  in  one  person,  but  is 
held  by  a  number  of  persons,  that  number  are  always 
combined  for  action  in  accordance  with  artificial  rules, 
and  will  have  the  obedience  of  the  community  only  when 
they  act  in  accordance  with  those  rules.  Parliament,  for 
instance,  is  said  by  Austin  to  be  the  Sovereign  of  England ; 
but  suppose  King,  Lords,  and  Commons  should  meet  in 
one  chamber  and  vote  together,  an  order  passed  by  them 
would  not  be  obeyed  by  the  English  people. 

And  when  political  power  is  vested  in  a  number  of 
persons,  not  only  may  their  mode  of  action  be  limited, 
but  the  objects  to  which  their  action  can  be  directed  may 
also  be  limited.  Certain  matters  may  be  excluded  from 
those  upon  which  they  can  issue  commands  that  will  be 
obeyed. 

Sover-  This  is  seen  most  clearly  in  federal  governments.    Aus- 

in  the  tin  is  of  the  opinion  that  in  the  United   States   "the 

United  r 

states          sovereignty  of  each  of  the  states,  and  also  of  the  larger 
state  arising  from  the  federal  union,  resides  in  the  states' 
governments,  as  forming  one  aggregate  body:  meaning  by 
»1  Jur.  (4th  ed.)  226,  227. 


THE  STATE  77 

a  state's  government,  not  its  ordinary  legislature,  but  the 
body  of  its  citizens  which  appoints  its  ordinary  legisla- 
ture, and  which,  the  union  apart,  is  properly  sovereign 
therein."  *  But  the  powers  of  the  United  States — that  is, 
of  all  the  States'  governments  "as  forming  an  aggregate 
body"  over  the  individual  citizens  of  a  particular  State — 
are  very  limited  in  character;  they  are  defined  by  the 
Constitution,  and  commands  by  such  aggregate  body  on 
matters  outside  of  the  Constitution  would  not  be  obeyed 
by  the  individual  citizens. 

Austin  attempts  to  surmount  this  difficulty  with  the 
aid  of  the  Fifth  Article  of  the  United  States  Constitu- 
tion, which  provides  for  amendments  to  be  effected  by  a 
ratification  by  three-fourths  of  the  States.  But  this  hardly 
solves  the  difficulty.  Suppose  Congress  recommends  to 
the  States  the  passage  of  an  amendment  to  the  Constitu- 
tion authorizing  an  income  tax  to  be  levied  without  regard 
to  population,  and  suppose  this  is  ratified  by  a  majority, 
but  not  by  three-fourths,  of  the  States,  and  Congress  there- 
upon passes  an  Act  imposing  such  a  tax.  The  Act  would 
not  be  obeyed. 

Who,  then,  would  be  sovereign  in  the  United  States? 
The  States  as  an  aggregate  body?  But  the  majority  of 
them  cannot  on  this  point  enforce  their  will.  Can  we 
say  that  the  dissenting  minority  of  the  States  are  the 
sovereign  of  the  United  States  ?  They  have  certainly  had 
their  way  upon  the  supposed  occasion.  They  have  com- 
manded that  the  law  by  which  an  income  tax  shall  be  ap- 
portioned according  to  population  shall  not  be  changed, 
and  their  commands  will  be  obeyed;  yet,  surely,  this 

«1  Jur.   (4th  ed.)   268. 


78        ^  NATURE  AND  SOURCES  OF  THE  LAW 

minority  cannot  be  called  sovereign ;  except  as  an  obstacle 
to  amending  the  Constitution,  it  is  powerless. 

Take  an  even  stronger  instance:  The  power  of  amend- 
ing the  Constitution  of  the  United  States  is  limited  by 
the  exception  that  "No  State,  without  its  consent,  shall 
be  deprived  of  its  equal  suffrage  in  the  Senate."  Suppose 
all  the  States  except  Utah  have  agreed  that  Utah  shall  have 
only  one  senator,  such  agreement  would  have  no  effect, 
and  yet  that  hardly  makes  the  State  of  Utah  the  Sovereign 
of  the  United  States. 

It  may  be  said  that  if  all  the  other  States  were  unani- 
mous in  the  opinion  that  Utah  should  have  only  one  sena- 
tor, they  would  force  the  result,  and  it  is  possible  that 
if  the  States  continue  with  very  different  populations,  the 
majority  in  number  of  the  States  may  be  opposed  by  an 
overwhelming  majority  of  the  population,  and  in  that  case 
the  Constitutional  safeguard  to  secure  the  position  of  the 
smaller  states  in  the  Senate  may  give  way;  but  that  will 
be  a  revolution,  a  change  of  sovereign. 

The  truth  is  that  the  ideal  or  fictitious  entity,  the 
State,  can  manifest  itself  only  through  organs,  and  these 
organs  may  be  so  limited  that  there  are  certain  acts  they 
cannot  perform,  and  therefore  there  may  be  no  one 
sovereign  in  Austin's  sense,  with  complete  powers.  Such 
is  the  case  in  the  United  States  of  America.1 

An  independent  State  is  a  legal  unit,  but  to  divide 
the  members  of  a  State  into  rulers  and  ruled,  and  call  the 
former  sovereign  and  the  latter  subjects,  furnishes  no 

aThe  essay  on  Sovereignty  by  Professor  Bliss  of  the  University 
of  Missouri,  published  in  1885,  clearly  expounds  this  view.  Unfor- 
tunately, the  unsatisfactory  character  of  the  discussion  on  the  nature 
of  Law,  with  which  the  Essay  opens,  repels  students  from  reading 
further. 


THE  STATE  79 

aid  to  the  understanding  of  the  Law  of  the  State.  To 
determine  who  are  the  real  rulers  of  a  political  society  is 
well-nigh  an  impossible  task, — for  Jurisprudence  a  well- 
nigh  insoluble  problem.  To  estimate,  even  approximately, 
the  power  that  a  certain  statesman  or  demagogue  has  or 
had  in  a  political  society  is  a  problem  whose  elements  are 
too  conflicting  and  too  obscure  for  human  judgment. 

To  attempt  to  draw  a  precise  line  .within  any  political  idea  of  a 

.     "  -i         -i  •  .  i  sovereigm 

society  between  sovereign  and  subjects,  is  to  introduce  unneces- 
a  needless  difficulty  into  Jurisprudence.  The  idea  of 
the  State  is  fundamental  in  Jurisprudence;  but  having 
postulated  the  State,  we  can  turn  at  once  to  see  what 
are  its  organs,  legislative,  judicial,  and  administrative,  and 
to  consider  the  rules  in  accordance  with  which  they  act. 
Austin's  method  would  be  to  attempt  to  discover  the  sover- 
eign from  the  society,  and  then  to  refer  the  organs  of  gov- 
ernment to  the  sovereign,  but  this  intermediate  step, 
which  it  is  very  difficult  to  take  rightly,  is  superfluous. 
The  organs  of  government  can  be  as  directly  referred  to 
the  State  as  they  can  be  to  the  sovereign. 

The  real  rulers  of  a  political  society  are  undiscover- 
able.  They  are  the  persons  who  dominate  over  the  wills 
of  their  fellows.  In  every  political  society  we  find  the 
machinery  of  government,  king  or  president,  parliament 
or  assembly,  judge  or  chancellor.  We  have  to  postulate 
one  ideal  entity  to  which  to  attach  this  machinery,  but 
why  insist  on  interposing  another  entity,  that  of  a  sover-, 
eign?  Nothing  seems  gained  by  it,  and  to  introduce  it 
is  to  place  at  the  threshold  of  Jurisprudence  a  very  diffi- 
cult, a  purely  academic,  and  an  irrelevant  question. 

Legal  rights  have  been  defined  as  the  rights  correla-  ^eg-stf   of 
tive  to  the  duties  which  the  State  will  enforce,  either  on  the  state 


80     THE  NATURE  AND  SOURCES  OF  THE  LAW 

its  own  motion,  or  on  the  motion  of  individuals;  the 
former  are  the  rights  of  the  State,  the  latter  are  the  rights 
of  the  individuals.1  But  it  has  been  denied  by  some  that 
the  State  can  have  any  legal  rights  against  any  of  its 
members. 

The  expression  of  the  idea  that  a  State  has  no  rights 
against  its  members  cannot  be  traced,  that  I  am  aware  of, 
farther  back  than  Austin.  Omitting  some  of  his  amplifi- 
cations, his  doctrine  is  this :  A  sovereign  government  has 
no  legal  rights  against  its  own  subjects.  Every  legal 
right  is  the  creature  of  a  positive  law;  and  it  answers  to 
a  relative  duty  imposed  by  that  positive  law  and  incum- 
bent on  a  person  or  persons  other  than  the  person  or 
person  in  whom  the  right  resides.  To  every  legal  right, 
there  are  therefore  three  parties:  The  sovereign  govern- 
ment which  sets  the  positive  law,  and  which  through  the 
positive  law  confers  the  legal  right,  and  imposes  the  rel' 
ative  duty;  the  person  or  persons  on  whom  the  right  is 
conferred;  the  person  or  persons  on  whom  the  duty  is 
imposed,  or  to  whom  the  positive  law  is  set  or  directed. 
...  A  sovereign  government  cannot  acquire  rights 
through  laws  set  by  itself  to  its  own  subjects.  A  man  is 
no  more  able  to  confer  a  right  on  himself,  than  he  is  able 
to  impose  on  himself  a  law  or  duty.  Every  party  bearing 
a  right  has  necessarily  acquired  the  right  through  the 
might  or  power  of  another;  that  is  to  say,  through  a  law 
and  a  duty  laid  by  that  party  on  a  further  and  distinct 
party.  Consequently,  if  a  sovereign  government  had  legal 
rights  against  its  own  subjects,  those  rights  would  be  the 
creatures  of  positive  laws  set  to  its  own  subjects  by  a  third 
person  or  body.  And,  as  every  positive  law  is  laid  by  a 

*P.  12,  ante. 


THE  STATE  81 

sovereign  government  on  a  person  or  persons  in  a  state  of 
subjection  to  itself,  that  third  person  or  body  would  be  sov- 
ereign in  that  community  whose  own  sovereign  govern- 
ment bore  the  legal  rights;  that  is  to  say,  the  community 
would  be  subject  to  its  own  sovereign,  and  would  be  also 
subject  to  a  sovereign  conferring  rights  upon  its  own. 
Which  is  impossible  and  absurd.1 

But  I  do  not  go  along  with  Austin.  There  are  some  partial 
objects  desired  by  individuals  which  the  State  will  pro-  of  power 
tect,  and  some  which  it  will  not  protect.  It  is  an  interest  right* 
of  mine,  an  object  of  my  desire,  that  my  neighbor  does 
not  drive  across  my  land.  That  is  an  interest  which  the 
State  will  protect ;  I  have  a  legal  right.  It  is  an  interest 
of  mine,  an  object  of  my  desire,  to  drive  across  my  neigh- 
bor's land.  This  interest  of  mine  the  State  will  not  pro- 
tect; I  have  no  legal  right  to  drive  over  my  neighbor's 
land.  So  with  the  interests  of  the  State.  It  is  for  the 
interest  of  the  State  that  robbery  should  be  prevented. 
It  protects  this  interest  by  issuing  a  command  and  impos- 
ing a  duty;  it  creates  for  itself  a  legal  right.  It  may  be 
its  interest,  an  object  of  its  desire,  that  the  citizens  of  the 
State  should  not  have  dirty  hands,  that  they  should  wash 
their  hands  at  least  once  a  day ;  but  if  it  does  not  enforce 
this  interest  by  imposing  a  duty,  then  it  has  no  legal  right 
to  the  diurnal  ablution. 

There  is,  of  course,  this  difference  between  the  State 
and  the  individual :  The  State  can  create  legal  rights,  the 
individual  cannot.  There  are  innumerable  interests  of  the 
State,  conditions  in  the  life  of  its  citizens,  which,  if  they 
existed,  would  be  greatly  to  the  advantage  of  the  State; 
but  the  State  does  not  protect  these  interests  by  imposing 
*1  Jur.  (4th  ed.)  290-292. 


82      THE  NATURE  AND  SOURCES  OF  THE  LAW 

duties,  because  to  do  so  would  injuriously  affect  greater 
interests.  It  is  desirable  that  people  should  wash  their 
hands ;  the  State  would  be  better  and  happier  if  they  did, 
and  it  may  wish  that  they  did;  but  it  does  not  enforce 
this,  its  interest,  because  its  enforcement  would  mean 
an  amount  of  domestic  espionage  which  would  be  a  greater 
injury  to  the  State  than  the  unwashed  hands.  Yet  the 
State  might,  if  it  would,  enforce  this  interest. 

But  the  distinction  between  all  those  interests,  on  the 
one  hand,  which  the  State  in  fact  protects,  through  its 
judicial  and  administrative  organs,  whether  at  its  own 
instance  or  at  the  instance  of  individuals,  and  all  those 
interests,  on  the  other  hand,  which  it  does  not  in  fact 
so  protect,  either  at  its  own  instance  or  at  the  instance 
of  individuals,  although  it  might  do  so  if  it  would,  is 
important  and  desirable  to  make,  and  the  name  which 
analogy  suggests  and  usage  has  given  for  the  power  to 
invoke  such  protection  for  the  former  is  "legal  right" 
Certain  interests  of  Watkins  will,  on  his  motion,  be  pro- 
tected by  the  State,  and,  if  the  question  arises  which  of 
his  interests  the  State  will  protect,  it  will  be  determined 
by  the  courts  of  the  State  according  to  rules  which  form 
the  Law  of  the  State;  and  the  interests  which  the  Law 
says  are  to  be  protected  are  the  objects  of  Watkins's  legal 
rights.  So  certain  interests  of  the  State  will,  on  the 
motion  of  the  State,  through  its  officers,  be  protected  by 
the  State,  and,  if  the  question  arises  what  interests  of  the 
State  the  State  will  protect,  the  question  will  be  deter- 
mined by  the  courts  of  the  State  according  to  its  Law; 
and  interests  which  the  Law  says  will  be  protected  are  the 
objects  of  the  legal  rights  of  the  State. 

And  this  nomenclature  is  not  only  adapted  to  the  true 


THE  STATE  83 

theory  of  human  relations,  but  it  is  suited  to  any  prac- 
tical view  of  affairs.  What  we  want  for  the  conduct  of 
life  is  to  know  what  are  the  acts  and  forbearances  which 
the  State  protects,  and  what  are  the  acts  and  forbearances 
which  it  compels;  in  other  words,  what  are  legal  rights 
and  duties?  At  whose  instance  these  acts  and  forbear- 
ances are  protected  and  enforced,  though  important,  is 
yet  of  secondary  importance. 

Or  the  matter  may  be  put  in  this  way:  Every  State 
has  judicial  organs  whose  function  is,  by  aid  of  certain 
rules  called  the  Law,  to  determine  what  interests  are  now 
entitled  to  be  protected,  and  what  acts  and  forbearances 
the  State  will  now,  on  its  own  motion  or  on  the  motion 
of  individuals,  enforce.  If  an  officer  of  the  State,  on 
its  behalf,  demands  the  performance  of  a  certain  act,  for 
instance,  that  a  woman  who  has  worn  a  high  hat  at  the 
theatre  shall  be  hanged,  and  the  Law  does  not  provide  for 
her  execution,  then  the  State  has  now  no  right  to  have  her 
hanged.  It  is  true  that  the  State  may  prescribe  a  different 
rule  for  the  judges ;  that  is,  it  may  cause  the  Law  to  be 
changed,  and  the  court  will  sentence  the  woman  to  be 
hanged ;  but  the  State  has  then  a  legal  right  which  it  did 
not  have  before.  The  State  has  an  indefinite  power  to 
create  legal  rights  for  itself,  but  the  only  legal  rights 
which  the  State  has  at  any  moment  are  those  interests 
which  are  then  protected  by  the  Law, — that  is,  by  the 
rules  in  accordance  with  which  the  judicial  organs  of  the 
State  are  then  acting. 


CHAPTEK  IV 

THE  LAW 

Definition          THE  Law  of  the  State  or  of  any  organized  body  of  men 
Law  is  composed  of  the  rules  which  the  courts,  that  is,  the 

judicial  organs  of  that  body,  lay  down  for  the  determina- 
tion of  legal  rights  and  duties.  The  difference  in  this 
matter  between  contending  schools  of  Jurisprudence  arises 
largely  from  not  distinguishing  between  the  Law  and  the 
Sources  of  the  Law.  On  the  one  hand,  to  affirm  the  ex- 
istence of  nicM  positivisches  Recht,  that  is,  of  Law  which 
the  courts  do  not  follow,  is  declared  to  be  an  absurdity; 
and  on  the  other  hand,  it  is  declared  to  be  an  absurdity  to 
say  that  the  Law  of  a  great  nation  means  the  opinions  of 
half-a-dozen  old  gentlemen,  some  of  them,  conceivably,  of 
very  limited  intelligence. 

The  truth  is,  each  party  is  looking  at  but  one  side  of 
the  shield.  If  those  half-a-dozen  old  gentlemen  form  the 
highest  judicial  tribunal  of  a  country,  then  no  rule  or 
principle  which  they  refuse  to  follow  is  Law  in  that 
country.  However  desirable,  for  instance,  it  may  be  that 
a  man  should  be  obliged  to  make  gifts  which  he  has  prom- 
ised to  make,  yet  if  the  courts  of  a  country  will  not  compel 
him  to  keep  his  promise,  it  is  not  the  Law  of  that  country 
that  promises  to  make  a  gift  are  binding.  On  the  other 
hand,  those  six  men  seek  the  rules  which  they  follow  not 
in  their  own  whims,  but  they  derive  them  from  sources 

84 


THE  LAW  85 

often  of  the  most  general  and  permanent  character,  to 
which  they  are  directed,  by  the  organized  body  to 
which  they  belong,  to  apply  themselves.  I  believe  the 
definition  of  Law  that  I  have  given  to  be  correct ;  but  let 
us  consider  some  other  definitions  of  the  Law  which  have 
prevailed  and  which  still  prevail. 

Of  the  many  definitions  of  the  Law  which  have  been 
given  at  various  times  and  places,  some  are  absolutely 
meaningless,  and  in  others  a  spark  of  truth  is  distorted 
by  a  mist  of  rhetoric.  But  there  are  three  theories  which 
have  commended  themselves  to  accurate  thinkers,  which 
have  had  and  which  still  have  great  acceptance,  and  which 
deserve  examination.  In  all  of  them  it  is  denied  that  the 
courts  are  the  real  authors  of  the  Law,  and  it  is  contended 
that  they  are  merely  the  mouthpieces  which  give  it  ex- 
pression. 

The  first  of  these  theories  is  that  Law  is  made  up  of  Law  as  the 

.  -         command 

the  commands  1  of  the  sovereign.     This  is  Austin's  view,  of  the . 

Sovereign 

"Every  Positive  Law,"  he  says,  "obtaining  in  any  com- 
munity, is  a  creature  of  the  Sovereign  or  State;  having 
been  established  immediately  by  the  monarch  or  supreme 
body,  as  exercising  legislative  or  judicial  functions;  or 
having  been  established  immediately  by  a  subject  indi- 
vidual or  body,  as  exercising  rights  or  powers  of  direct 
or  judicial  legislation,  which  the  monarch  or  supreme  body 
has  expressly  or  tacitly  conferred."  2 

In  a  sense,  this  is  true ;  the  State  can  restrain  its  courts 
from  following  this  or  that  rule;  but  it  often  leaves  them 
free  to  follow  what  they  think  right ;  and  it  is  certainly  a 
forced  expression  to  say  that  one  commands  things  to  be 

1See  p.  24,  ante. 

»2  Jur.  (4thed.)  550,  551. 


86     THE  NATURE  AND  SOURCES  OF  THE  LAW 

done,  because  he  has  power  (which  he  does  not  exercise)  to 
forbid  their  being  dona 

Mr.  A.  B.,  who  wants  a  house,  employs  an  architect, 
Mr.  Y.  Z.,  to  build  it  for  him.  Mr.  Y.  Z.  puts  up  a  stair- 
case in  a  certain  way ;  in  such  a  case,  nine  times  out  of  ten, 
he  puts  it  up  in  that  way,  because  he  always  puts  up  stair- 
cases in  that  way,  or  because  the  books  on  construction  say 
they  ought  to  be  so  put  up,  or  because  his  professional 
brethren  put  up  their  staircases  in  that  fashion,  or  be- 
cause he  thinks  to  put  it  up  so  would  be  good  building, 
or  in  good  taste,  or  because  it  costs  him  less  trouble  than 
to  put  it  up  in  some  other  way ;  he  seldom  thinks  whether 
Mr.  A.  B.  would  like  it  in  that  way  or  not ;  and  probably 
Mr.  A.  B.  never  thinks  whether  it  could  have  been  put  up 
in  any  other  fashion.  Here  it  certainly  seems  strained 
to  speak,  as  Austin  would  do,  of  the  staircase  as  being 
the  "creature"  of  Mr.  A.  B. ;  and  yet  Mr.  A.  B.  need  not 
have  had  his  staircase  put  up  in  that  way,  and  indeed 
need  never  have  had  any  staircase  or  any  house  at  all. 

When  an  agent,  servant,  or  official  does  acts  as  to  which 
he  has  received  no  express  orders  from  his  principal,  he 
may  aim,  or  may  be  expected  to  aim,  directly  at  the  satis- 
faction of  the  principal,  or  he  may  not.  Take  an  instance 
of  the  first, — a  cook,  in  roasting  meat  or  boiling  eggs, 
has,  or  at  any  rate  the  ideal  cook  is  expected  to  have, 
directly  in  view  the  wishes  and  tastes  of  her  master.  On 
the  other  hand,  when  a  great  painter  is  employed  to  cover 
a  church  wall  with  a  picture,  he  is  not  expected  to  keep 
constantly  in  mind  what  will  please  the  wardens  and 
vestry;  they  are  not  to  be  in  all  his  thoughts;  if  they  are 
men  of  ordinary  sense,  they  will  not  wish  to  be;  he  is  to 
seek  his  inspiration  elsewhere,  and  the  picture  when  done 


THE  LAW  87 

is  not  the  "creature"  of  the  wardens  and  vestry ;  whereas, 
if  the  painter  had  adopted  an  opposite  course,  and  had 
bent  his  whole  energies  to  divining  what  he  thought  would 
please  them  best,  he  would  have  been  their  "tool,"  and 
the  picture  might  not  unfairly  be  described  as  their  crea- 
ture. 

Now  it  is  clear  into  which  of  these  classes  a  judge 
falls.  Where  he  has  not  received  direct  commands  from 
the  State,  he  does  not  consider,  he  is  not  expected  to  con- 
sider, directly  what  would  please  the  State;  his  thoughts 
are  directed  to  the  questions — What  have  other  judges 
held?  What  does  Ulpian  or  Lord  Coke  say  about  the 
matter?  What  decision  does  elegantw  juris  or  sound 
morals  require? 

It  is  often  said  by  hedonistic  moralists  that,  while 
happiness  is  the  end  of  human  life,  it  is  best  attained 
by  not  aiming  directly  at  it;  so  it  may  be  the  end  of  a 
court,  as  of  any  other  organ  of  a  body,  to  carry  out  the 
wishes  of  that  body,  but  it  best  reaches  that  object  by  not 
directly  considering  those  wishes. 

Austin's  statement  that  the  Law  is  entirely  made  up 
of  commands  directly  or  indirectly  imposed  by  the  State 
is  correct,  therefore,  only  on  the  theory  that  everything 
which  the  State  does  not  forbid  its  judges  to  do,  and 
which  they  in  fact  do,  the  State  commands,  although  the 
judges  are  not  animated  by  a  direct  desire  to  carry  out  the 
State's  wishes,  but  by  entirely  different  ones. 

In  this  connection,  the  meaning  of  "Law,"  when  pre-  -A  Law" 
ceded  by  the  indefinite,  is  to  be  distinguished  from  that  "The  Law1 
which  it  bears  when  preceded  by  the  definite,   article. 
Austin,  indeed,  defines  the  Law  as  being  the  aggregate 


88      THE  NATURE  AND  SOURCES  OF  THE  LAW 

of  the  rules  established  by  political  superiors;1  and 
Bentham  says,  "Law,  or  the  Low,  taken  indefinitely,  is 
an  abstract  and  collective  term;  which,  when  it  means 
anything,  can  mean  neither  more  nor  less  than  the  sum 
total  of  a  number  of  individual  laws  taken  together."  2 
But  this  is  not,  I  think,  the  ordinary  meaning  given  to 
"the  Law."  A  law  ordinarily  means  a  statute  passed  by 
the  legislature  of  a  State.  " The  Law"  is  the  whole  system 
of  rules  applied  by  the  courts.  The  resemblance  of  the 
terms  suggests  the  inference  that  the  body  of  rules  applied 
by  the  courts  is  composed  wholly  of  the  commands  of  the 
State;  but  to  erect  this  suggestion  into  a  demonstration, 
and  say: — The  system  administered  by  the  courts  is  "the 
Law,"  "the  Law"  consists  of  nothing  but  an  aggregate 
of  single  laws,  and  all  single  laws  are  commands  of  the 
State, — is  not  justifiable. 

It  is  to  Sir  Henry  Maine  that  we  owe  the  distinct 
pointing  out  that  Austin's  theory  "is  founded  on  a  mere 
artifice  of  speech,  and  that  it  assumes  courts  of  justice 
to  act  in  a  way  and  from  motives  of  which  they  are  quite 
unconscious.  .  .  .  Let  it  be  understood  that  it  is  quite 
possible  to  make  the  theory  fit  in  with  such  cases,  but  the 
process  is  a  mere  straining  of  language.  It  is  carried  on 
by  taking  words  and  propositions  altogether  out  of  the 
sphere  of  the  ideas  habitually  associated  with  them."  3 

Austin's  theory  was  a  natural  reaction  against  the 
views  which  he  found  in  possession  of  the  field.  Law 
had  been  defined  as  "the  art  of  what  is  good  and  equita- 
ble"; "that  which  reason  in  such  sort  defines  to  be  good 

*1  Jur.  (4th  ed.)  89. 

fl    Benth.    Works,    148. 

•Maine,  Early  Hist,  of  Inst.  364,  365. 


THE  LAW  89 

that  it  must  be  done";  "the  abstract  expression  of  the 
general  will  existing  in  and  for  itself";  "the  organic 
whole  of  the  external  conditions  of  the  intellectual  life."  1 
If  Austin  went  too  far  in  considering  the  Law  as  always 
proceeding  from  the  State,  he  conferred  a  great  benefit  on 
Jurisprudence  by  bringing  out  clearly  that  the  Law  is  at 
the  mercy  of  the  State. 

The  second  theory  on  the  nature  of  Law  is  that  the  Law  in  the 

i  •  i  •  i-i          conscious- 

COUrts,  in  deciding  cases,  are,  in  truth,  applying  what  has  ness  of  the 

previously  existed  in  the  common  consciousness  of  the  peo- 

ple.    Savigny  is  the  ablest  expounder  of  this  theory.    At 

the   beginning   of   the   System  des  Jieutigen  romischen 

Rechts,  he  has  set  it  forth  thus:     "It  is  in  the  common 

consciousness  of  the  people  that  the  positive  law  lives,  and 

hence  we  have  to  call  it  Volksrecht.  ...  It  is  the  Volks- 

geist,  living  and  working  in  all  the  individuals  in  common, 

which  begets  the  positive  law,  so  that  for  the  consciousness 

of  each  individual  there  is,  not  by  chance  but  necessarily, 

one  and  the  same  law.  .  .  .  The  form,  in  which  the  Law 

lives  in  the  common  consciousness  of  the  people,  is  not 

that  of  abstract  rule,  but  the  living  intuition  of  the  in- 

stitute of  the  Law  in  its  organic  connection.  .  .  .  When 

I  say  that  the  exercise  of  the  Volksrecht  in  single  cases 

must  be  considered  as  a  means  to  become  acquainted  with 

it,  an  indirect  acquaintance  must  be  understood,  neces- 

sary for  those  who  look  at  it  from  the  outside,  without 

being  themselves  members  of  the  community  in  which  the 

Volksrecht  has  arisen  and  leads  its  continuous  life.     For 

the  members  of  the  community,  no  such  inference  from 


Hooker;  Hegel;  Krause.     See  Holland,  Jur.   (llth  ed.) 
20. 


90     THE  NATURE  AND  SOURCES  OF  THE  LAW 

single  cases  of  exercise  is  necessary,  since  their  knowledge 
of  it  is  direct  and  based  on  intuition."  1 

Savigny  is  careful  to  discriminate  between  the  com- 
mon consciousness  of  the  people  and  custom:  "The 
foundation  of  the  Law/'  he  says,  "has  its  existence,  its 
reality,  in  the  common  consciousness  of  the  people.  This 
existence  is  invisible.  How  can  we  become  acquainted 
with  it?  We  become  acquainted  with  it  as  it  manifests 
itself  in  external  acts,  as  it  appears  in  practice,  manners, 
and  custom :  by  the  uniformity  of  a  continuous  and  con- 
tinuing mode  of  action,  we  recognize  that  the  belief  of 
the  people  is  its  common  root,  and  not  mere  chance. 
Thus,  custom  is  the  sign  of  positive  law,  not  its  founda- 
tion." 2 
Opinions  Savigny  is  confronted  by  a  difficulty  of  the  same  kind 

of  jurists  .  __v  .if-, 

as  confronted  Austin.  The  great  bulk  of  the  Law  as  it 
exists  in  any  community  is  unknown  to  its  rulers,  and 
it  is  only  by  aid  of  the  doctrine  that  what  the  sover- 
eign permits  he  commands,  that  the  Law  can  be  con- 
sidered as  emanating  from  him;  but  equally,  the  great 
bulk  of  the  Law  is  unknown  to  the  people;  how,  then, 
can  it  be  the  product  of  their  "common  consciousness"  ? 
How  can  it  be  that  of  which  they  "feel  the  necessity  aa 
law"? 

Take  a  simple  instance,  one  out  of  thousands.  By  the 
law  of  Massachusetts,  a  contract  by  letter  is  not  complete 
until  the  answer  of  acceptance  is  received.3  By  the  law 
of  New  York,  it  is  complete  when  the  answer  is  mailed. 
Is  the  common  consciousness  of  the  people  of  Massa- 

1 1  Savigny,  Heut.  rom.  Recht,  §  7,  pp.  14,  16 ;  §  12,  p.  38. 
2Heut.  rom.  Recht,  §   12,  p.  35. 

"This  used  to  be  the  Law  in  Massachusetts.     I  am  not  so  sure 
that  it  is  now.     (See  1  Williston,  Contracts,  §  81.) 


THE  LAW  91 

chusetts  different  on  this  point  from  that  of  the  people  of 
New  York  ?  Do  the  people  of  Massachusetts  feel  the  ne- 
cessity of  one  thing  as  law,  and  the  people  of  New  York 
feel  the  necessity  of  the  precise  opposite?  In  truth,  not 
one  in  a  hundred  of  the  people  of  either  State  has  the 
dimmest  notion  on  the  matter.  If  one  of  them  has  a 
notion,  it  is  as  likely  as  not  to  be  contrary  to  the  law  of 
his  State. 

Savigny  meets  the  difficulty  thus:  "The  Law,  orig- 
inally the  common  property  of  the  collected  people,  in 
consequence  of  the  ramifying  relations  of  real  life,  is  so 
developed  in  its  details  that  it  can  no  more  be  mastered 
by  the  people  generally.  Then  a  separate  class  of  legal 
experts  is  formed  which,  itself  an  element  of  the  people, 
represents  the  community  in  this  domain  of  thought.  In 
the  special  consciousness  of  this  class,  the  Law  is  only  a 
continuation  and  peculiar  development  of  the  VoTksreckt. 
The  last  leads,  henceforth,  a  double  life.  In  its  funda- 
mental principles  it  continues  to  live  in  the  common  con- 
sciousness of  the  people;  the  exact  determination  and  the 
application  to  details  is  the  special  calling  of  the  class  of 
jurisconsults."  * 

But  the  notion  that  the  opinions  of  the  jurisconsults 
are  the  developed  opinions  of  the  people  is  groundless.  In 
the  countries  of  the  English  Common  Law,  where  the 
judges  are  the  jurists  whose  opinions  go  to  make  up  the 
Law,  there  would  be  less  absurdity  in  considering  them 
as  expressing  the  opinions  of  the  people;  but  on  the  Con- 
tinent of  Europe,  in  Germany  for  instance,  it  is  difficult 
to  think  of  the  unofficial  and  undeterminate  class  of  jurists, 

*1  Heut.  rom.  Recht,  §   14,  p.  45. 


92      THE  NATURE  AND  SOURCES  OF  THE  LAW 

past  and  present,  from  whose  writings  so  great  a  part  of 
the  Law  has  been  derived,  as  expressing  the  opinions 
of  the  people.  In  their  reasonings,  it  is  not  the  opinions 
of  the  people  of  their  respective  countries,  Prussia,  or 
Schwartzburg-Sonderhausen,  which  guide  their  judg- 
ment. They  may  bow  to  the  authority  of  statutes,  but  in 
the  domain  of  Law  which  lies  outside  of  statute,  the 
notions  on  Law,  if  they  exist  and  are  discoverable,  which 
they  are  mostly  not,  of  the  persons  among  whom  they  live, 
are  the  last  things  which  they  take  into  account.  What 
they  look  to  are  the  opinions  of  foreign  lawyers,  of  Papin- 
ian,  of  Accursius,  of  Cujacius,  or  at  the  elegantia  juris, 
or  at  "juristic  necessity."  * 

The  jurists  set  forth  the  opinions  of  the  people  no  more 
and  no  less  than  any  other  specially  educated  or  trained 
class  in  a  community  set  forth  the  opinions  of  that  com- 
munity, each  in  its  own  sphere.  They  in  no  other  way 
set  forth  the  Volksgeist  in  the  domain  of  Law  than  edu- 
cated physicians  set  forth  the  Volksgeist  in  the  matter  of 
medicine.  It  might  be  very  desirable  that  the  conceptions 
of  the  Volksgeist  should  be  those  of  the  most  skilful  of 
the  community,  but  however  desirable  this  might  be,  it  is 
not  the  case.  The  Volksgeist  carries  a  piece  of  sulphur  in 
its  waistcoat  pocket  to  keep  off  rheumatism,  and  thinks 
that  butchers  cannot  sit  on  juries. 

!Nbt  only  is  popular  opinion  apart  from  professional 
opinion  in  Law  as  in  other  matters,  but  it  has  been  at 
times  positively  hostile.  Those  who  hold  that  jurists  are 
the  mouthpieces  of  the  popular  convictions  in  matters  of 
law  have  never  been  able  to  deal  satisfactorily  with  the 

*See  an  article  by  Professor  Pound,  in  31  Harvard  Law  Rev. 
1047. 


THE  LAW  93 

reception  of  the  Roman  law  in  Germany,  for  that  Law 
was  brought  in  not  only  without  the  wishes,  but  against 
the  wishes,  of  the  great  mass  of  the  people.1 

A  third  theory  of  the  Law  remains  to  consider.  That  Judges  as 
theory  is  to  this  effect :  The  rules  followed  by  the  courts  of  the  Law 
in  deciding  questions  are  not  the  expression  of  the  State's 
commands,  nor  are  they  the  expression  of  the  common 
consciousness  of  the  people,  but,  although  what  the  judges 
rule  is  the  Law,  it  is  putting  the  cart  before  the  horse 
to  say  that  the  Law  is  what  the  judges  rule.  The  Law, 
indeed,  is  identical  with  the  rules  laid  down  by  the 
judges,  but  those  rules  are  laid  down  by  the  judges  because 
they  are  the  law,  they  are  not  the  Law  because  they  are 
laid  down  by  the  judges;  or,  as  the  late  Mr.  James  C. 
Carter  puts  it,  the  judges  are  the  discoverers,  not  the 
creators,  of  the  Law.  And  this  is  the  way  that  judges 
themselves  are  apt  to  speak  of  their  functions.2 

This  theory  concedes  that  the  rules  laid  down  by  the  only  what 

.     ,  ,  ,       T  ,          .       ,  .      .      the  Judges 

judges  correctly  state  the  Law,  but  it  denies  that  it  is  lay  down 
Law  because  they  state  it.  Before  considering  the  denial, 
let  us  look  a  moment  at  the  concession.  It  is  a  proposi- 
tion with  which  I  think  most  Common-Law  lawyers  would 
agree.  But  we  ought  to  be  sure  that  our  ideas  are  not 
colored  by  the  theories  or  practice  of  the  particular  sys- 
tem of  law  with  which  we  are  familiar.  In  the  Com- 
mon Law,  it  is  now  generally  recognized  that  the  judges 
have  had  a  main  part  in  erecting  the  Law ;  that,  as  it  now 
stands,  it  is  largely  based  on  the  opinions  of  past  genera- 
tions of  judges;  but  in  the  Civil  Law,  as  we  shall  see 
hereafter,  this  has  been  true  to  a  very  limited  extent.  In 

1  See   Appendix   III. 
*  See  pp.  218-240,  post. 


94     THE  NATURE  AND  SOURCES  OF  THE  LAW 

other  words,  judicial  precedents  have  been  the  chief  mate- 
rial for  building  up  the  Common  Law,  but  this  has  been 
far  otherwise  in  the  systems  of  the  Continent  of  Europe.1 
But  granting  all  that  is  said  by  the  Continental  writers  on 
the  lack  of  influence  of  judicial  precedents  in  their  coun- 
tries to  be  true,  yet,  although  a  past  decision  may  not  be 
a  source  of  Law,  a  present  decision  is  certainly  an  ex- 
pression of  what  the  Law  now  is.  The  courts  of  France 
to-day  may,  on  the  question  whether  a  blank  indorsement 
of  a  bill  of  exchange  passes  title,  care  little  or  nothing 
for  the  opinions  formerly  expressed  by  French  judges 
on  the  point,  but,  nevertheless,  the  opinion  of  those  courts 
to-day  upon  the  question  is  the  expression  of  the  present 
Law  of  France,  for  it  is  in  accordance  with  such  opinion 
that  the  State  will  compel  the  inhabitants  of  France  to 
regulate  their  conduct.  To  say  that  any  doctrine  which 
the  courts  of  a  country  refuse  to  adopt  is  Law  in  that 
country,  is  to  set  up  the  idol  of  nicht  positivisches  Recht;2 
and,  therefore,  it  is  true,  in  the  Civil  as  well  as  in  the 
Common  Law,  that  the  rules  laid  down  by  the  courts  of  a 
country  state  the  present  Law  correctly. 

The  great  gain  in  its  fundamental  conceptions  which 
Jurisprudence  made  during  the  last  century  was  the  rec- 
ognition of  the  truth  that  the  Law  of  a  State  or  other 
organized  body  is  not  an  ideal,  but  something  which 
actually  exists.  It  is  not  that  which  is  in  accordance  with 
religion,  or  nature,  or  morality ;  it  is  not  that  which  ought 
to  be,  but  that  which  is.  To  fix  this  definitely  in  the 
Jurisprudence  of  the  Common  Law,  is  the  feat  that  Aus- 
tin accomplished.  He  may  have  been  wrong  in  treating 

*P.  205.  et  seq. 
'P.  84,  ante. 


THE  LAW  95 

the  Law  of  the  State  as  being  the  command  of  the  sover- 
eign, but  he  was  right  in  teaching  that  the  rules  for 
conduct  laid  down  by  the  persons  acting  as  judicial  organs 
of  the  State,  are  the  Law  of  the  State,  and  that  no  rules 
not  so  laid  down  are  the  Law  of  the  State. 

The  Germans  have  been  singularly  inappreciative  of 
Bentham  and  Austin,  and,  as  so  often  happens,  the  arrival 
at  a  sound  result  has  been  greatly  hampered  by  nomen- 
clature. Ethics  is,  in  Continental  thought,  divided  into 
two  parts,  one  dealing,  with  matters  which  can  be  enforced 
by  external  compulsion,  and  the  other  with  those  which 
cannot.  The  former  of  these  is  called  Rechislehre.  Ac- 
cording to  Kant,  Moral  philosophy  (Metaphysik  der 
Sitten)  is  divisible  into  two  parts:  (1)  the  metaphysical 
principles  of  Jurisprudence  (Eechtslehre) ,  and  (2)  the 
metaphysical  principles  of  ethics  (Tugendlehre)  *  Juris- 
prudence has  for  its  subject-matter  the  aggregate  of  all 
the  laws  which  it  is  possible  to  promulgate  by  external 
legislation.2  All  duties  are  either  duties  of  justice 
(RechtspflicJit)  or  duties  of  virtue  (Tugendpflicht) .  The 
former  are  such  as  admit  of  external  legislation;  the  lat- 
ter are  those  for  which  such  legislation  is  not  possible.3 
Eechtslehre,  that  is,  deals  not  only  with  the  rules  which 
the  State  has  actually  imposed  upon  conduct,  but  also 
with  all  conduct  which  can  be  potentially  subjected  to  such 

*Kant,  Rechtslehre,  (Philosophy  of  Law),  Preface,  at  beginning. 
Hastie's  trans,  p.  3. 

8  Ib.  Introduction  to  Jurisprudence,  A,  What  is  Jurisprudence?,  at 
beginning.  Hastie,  p.  43. 

*/&.  Introduction  to  Moral  Philosophy,  III,  Divisions  of  the 
Metaphysic  of  Morals,  at  beginning.  Hastie,  p.  24.  I  owe  the  ref- 
erence to  these  passages  of  Kant  to  an  article  by  John  W.  Salmon, 
in  11  Law  Quarterly  Eev.,  121,  140,  on  the  Law  of  Nature.  See 
also  Willoughby,  Nature  of  the  State,  113,  note. 


06     THE  NATURE  AND  SOURCES  OF  THE  LAW 

rules;  and  this  has  tended  to  obscure  the  distinction  be- 
tween the  rules  which  have  actually  been  laid  down  from 
those  which  might  have  been  laid  down.  But  of  late  years, 
the  Germans,  in  their  own  way,  have  been  coming  round 
to  Austin's  view;  and  now  the  abler  ones  are  abjuring  all 
"nicht  positivisches  Recht."  1 

Questions  To  come,  then,  to  the  question  whether  the  judges  dis- 
previousiy  cover  preexisting  Law,  or  whether  the  body  of  rules  that 
they  lay  down  is  not  the  expression  of  preexisting  Law, 
but  the  Law  itself.  Let  us  take  a  concrete  instance:  On 
many  matters  which  have  come  in  question  in  various  juris- 
dictions, there  is  no  doctrine  received  semper,  ubique,  ei 
ab  omnibus.  For  instance,  Henry  Pitt  has  built  a  res- 
ervoir on  his  land,  and  has  filled  it  with  water ;  and,  with- 
out any  negligence  on  his  part,  either  in  the  care  or  con- 
struction of  his  reservoir,  it  bursts,  and  the  water,  pouring 
forth,  floods  and  damages  the  land  of  Pitt's  neighbor, 
Thomas  Underbill.  Has  Underbill  a  right  to  recover  com- 
pensation from  Pitt  ?  In  England,  in  the  leading  case  of 
*  Rylands  v.  Fletcher?  it  was  held  that  he  could  recover, 
and  this  decision  has  been  followed  in  some  of  the  United 
States — for  instance,  in  Massachusetts;  but  in  others,  as, 
I  believe,  in  New  Jersey,  the  contrary  is  held.3 

Now,  suppose  that  Pitt's  reservoir  is  in  one  of  the  newer 
States,  say  Utah,  and  suppose,  further,  that  the  question 
has  never  arisen  there  before;  that  there  is  no  statute, 
no  decision,  no  custom  on  the  subject;  the  court  has  to 
decide  the  case  somehow ;  suppose  it  should  follow  Rylands 

1See  Bergbohm,  Jurisprudenz  et  Rechtsphilosophie,  passim. 
3L.  R.  3  H.  L.  330. 

*  Wilson  v.  New  Bedford,  108  Mass.  261;  Marshall  v.  Welioood, 
38  N.  J.  Law,  339. 


THE  LAW  97 

v.  Fletcher  and  should  rule  that  in  such  cases  the  party 
injured  can  recover.  The  State,  then,  through  its  judicial 
organ,  backed  by  the  executive  power  of  the  State,  would 
be  recognizing  the  rights  of  persons  injured  by  such  acci- 
dents, and,  therefore,  the  doctrine  of  Rylands  v.  Fletcher 
would  be  undoubtedly  the  present  Law  in  Utah. 

Suppose,  again,  that  a  similar  state  of  facts  arises  in 
the  adjoining  State  of  Nevada,  and  that  there  also  the 
question  is  presented  for  the  first  time,  and  that  there  is 
no  statute,  decision,  or  custom  on  the  point;  the  Nevada 
court  has  to  decide  the  case  somehow;  suppose  it  should 
decline  to  follow  Rylands  v.  Fletcher,  and  should  rule 
that  in  such  cases  the  party  injured  is  without  remedy. 
Here  the  State  of  Nevada  would  refuse  to  recognize  any 
right  in  the  injured  party  and,  therefore,  it  would  un- 
questionably be  the  present  Law  in  Nevada  that  persons 
injured  by  such  an  accident  would  have  no  right  to  com- 
pensation. 

Let  us  now  assume  that  the  conditions  and  habits  of 
life  are  the  same  in  these  two  adjoining  States;  that  be- 
ing so,  these  contradictory  doctrines  cannot  both  conform 
to  an  ideal  rule  of  Law,  and  let  us,  therefore;  assume  that 
an  all-wise  and  all-good  intelligence,  considering  the  ques- 
tion, would  think  that  one  of  these  doctrines  was  right 
and  the  other  wrong,  according  to  the  true  standard  of 
morality,  whatever  that  may  be.  It  matters  not,  for  the 
purposes  of  the  discussion,  which  of  the  two  doctrines  it 
is,  but  let  us  suppose  that  the  intelligence  aforesaid  would 
approve  Rylands  v.  Fletcher;  that  is,  it  would  think  the 
Law  as  established  in  Nevada  by  the  decision  of  its  court 
did  not  conform  to  the  eternal  principles  of  right. 

The  fact  that  the  ideal  theory  of  Law  disapproved  the 


98      THE  NATURE  AND  SOURCES  OF  THE  LAW 

Law  as  established  in  Nevada  would  not  affect  the  present 
existence  of  that  Law.  However  wrong  intellectually  or 
morally  it  might  be,  it  would  be  the  Law  of  that  State 
to-day.  But  what  was  the  Law  in  Nevada  a  week  before 
a  rule  for  decision  of  such  questions  was  adopted  by  the 
courts  of  that  State?  Three  views  seem  possible:  first, 
that  the  Law  was  then  ideally  right,  and  contrary  to  the 
rule  now  declared  and  practised  on ;  second,  that  the  Law 
was  then  the  same  as  is  now  declared  practised;  third, 
that  there  was  then  no  Law  on  the  matter.  « 

The  first  theory  seems  untenable  on  any  notion  of 
discovery.  A  discoverer  is  a  discoverer  of  that  which  is, 
— not  of  that  which  is  not.  The  result  of  such  a  theory 
would  be  that  when  Underhill  received  the  injury  and 
brought  his  suit,  he  had  an  interest  which  would  be  pro- 
tected by  the  State,  and  that  it  now  turns  out  that  he  did 
not  have  it, — a  contradiction  in  terms. 

NO  Law  We  have  thus  to  choose  between  the  theory  that  the 

to  decision  Law  was  at  that  time  what  it  now  is,  and  the  theory  that 
there  was  then  no  law  at  all  on  the  subject.  The  latter 
is  certainly  the  view  of  reason  and  common  sense  alike. 
There  was,  at  the  time  in  question,  ex  hypothesi,  no  statute, 
no  precedent,  no  custom  on  the  subject;  of  the  inhabitants 
of  the  State  not  one  out  of  a  hundred  had  an  opinion 
on  the  matter  or  had  ever  thought  of  it;  of  the  few,  if 
any,  to  whom  the  question  had  ever  occurred,  the  opinions 
were,  as  likely  as  not,  conflicting.  To  say  that  on  this 
subject  there  was  really  Law  existing  in  Nevada,  seems 
only  to  show  how  strong  a  root  legal  fictions  can  strike 
into  our  mental  processes. 

When  the  element  of  long  time  is  introduced,  the  ab- 
surdity of  the  view  of  Law  preexistent  to  its  declaration 


THE  LAW  99 

is  obvious.  What  was  the  Law  in  the  time  of  Richard 
Cceur  de  Lion  on  the  liability  of  a  telegraph  company  to 
the  persons  to  whom  a  message  was  sent?  It  may  be 
said  that  though  the  Law  can  preexist  its  declaration,  it 
is  conceded  that  the  Law  with  regard  to  a  natural  force 
cannot  exist  before  the  discovery  of  the  force.  Let  us 
take,  then,  a  transaction  which  might  have  occurred  in 
the  eleventh  century :  A  sale  of  chattels,  a  sending  to  the 
vendee,  his  insolvency,  and  an  order  by  the  vendor  to  the 
carrier  not  to  deliver.  What  was  the  Law  on  stoppage 
in  transitu  in  the  time  of  William  the  Conqueror  ? 

The  difficulty  of  believing  in  preexisting  Law  is  still 
greater  when  there  is  a  change  in  the  decision  of  the 
courts.  In  Massachusetts  it  was  held  in  1849,  by  the  Su- 
preme Judicial  Court,  that  if  a  man  hired  a  horse  in 
Boston  on  a  Sunday  to  drive  to  Nahant,  and  drove  in- 
stead to  JsTantasket,  the  keeper  of  the  livery  stable  had  no 
right  to  sue  him  in  trover  for  the  conversion  of  the  horse. 
But  in  1871  this  decision  was  overruled,  and  the  right  was 
given  to  the  stable-keeper.1  Now,  did  stable-keepers  have 
such  rights,  say,  in  1845  ?  If  they  did,  then  the  court  in 
1849  did  not  discover  the  Law.  If  they  did  not,  then 
the  court  in  1871  did  not  discover  the  Law. 

And  this  brings  us  to  the  reason  why  courts  and  jurists  courts 
have  so  struggled  to  maintain  the  preexistence  of  the  Law,   ex  post 

_-,..,  facto  Law 

why  the  common  run  of  writers  speak  of  the  judges  as 
merely  stating  the  Law,  and  why  Mr.  Carter,  in  an  ad- 
vance towards  the  truth,  says  of  the  judges  that  they  are 
discoverers  of  the  Law.  That  reason  is  the  unwillingness 
to  recognize  the  fact  that  the  courts,  with  the  consent 

1  Gregg  v.  Wyman,  4  Gush.  322;  Hall  v.  Corcoran,  107  Mass.  251. 


100          THE  NATURE  AND  SOURCES  OF  THE  LAW 

of  the  State,  have  been  constantly  in  the  practice  of  ap- 
plying in  the  decision  of  controversies,  rules  which  were 
not  in  existence  and  were,  therefore,  not  knowable  by  the 
parties  when  the  causes  of  controversy  occurred.  It  is 
the  unwillingness  to  face  the  certain  fact  that  courts  are 
constantly  making  ex  post  facto  Law.1 

The  unwillingness  is  natural,  particularly  on  the  part 
of  the  courts,  who  do  not  desire  to  call  attention  to  the 
fact  that  they  are  exercising  a  power  which  bears  so 
unpopular  a  name,  but  it  is  not  reasonable.  Practically 
in  its  application  to  actual  affairs,  for  most  of  the  laity, 
the  Law,  except  for  a  few  crude  notions  of  the  equity  in- 
volved in  some  of  its  general  principles,  is  all  ex  post  facto. 
When  a  man  marries,  or  enters  into  a  partnership,  or  buys 
a  piece  of  land,  or  engages  in  any  other  transaction,  he 
has  the  vaguest  possible  idea  of  the  Law  governing  the 
•ituation,  and  with  our  complicated  system  of  Jurispru- 
dence, it  is  impossible  it  should  be  otherwise.  If  he 
delayed  to  make  a  contract  or  do  an  act  until  he  under- 
stood exactly  all  the  legal  consequences  it  involved,  the 
contract  would  never  be  made  or  the  act  done.  Now  the 
Law  of  which  a  man  has  no  knowledge  is  the  same  to  him 
as  if  it  did  not  exist. 

Again,  the  function  of  a  judge  is  not  mainly  to  de- 
clare the  Law,  but  to  maintain  the  peace  by  deciding  con- 
troversies. Suppose  a  question  comes  up  which  has  never 
been  decided, — and  such  questions  are  more  frequent  than 
persons  not  lawyers  generally  suppose, — the  judge  must 
decide  the  case  somehow;  he  will  properly  wish  to  de- 

1  Technically  the  term  "ex  post  facto  Law"  is  confined  with  us  to 
statutes  creating  crimes  or  punishments.  I  use  the  term  here  in  its 
broader  sense  of  retroactive  Law. 


THE  LAW  101 

cide  it  not  on  whim,  but  on  principle,  and  he  lays  down 
some  rule  which  meets  acceptance  with  the  courts,  and 
future  cases  are  decided  in  the  same  way.  That  rule 
is  the  Law,  and  yet  the  rights  and  duties  of  the  parties 
were  not  known  and  were  not  knowable  by  them.  That 
is  the  way  parties  are  treated  and  have  to  be  treated 
by  the  courts;  it  is  solemn  juggling  to  say  that  the  Law, 
undiscovered  and  undiscoverable,  and  which  is  finally  de- 
termined in  opposite  ways  in  two  communities  separated 
only  by  an  artificial  boundary,  has  existed  in  both  com- 
munities from  all  eternity.  I  shall  recur  to  this  matter 
when  we  come  to  consider  the  topic  of  Judicial  Precedents. 

It  may  be  said  that  there  are  reasons,  based  on  the  Law  and 

1  •   -i  -if  pit  ii-r  111    the  Natural , 

highest  welfare  of  the  human  race,  why  the  Law  should  sciences 
be  so  or  otherwise,  and  that  it  is  one  of  the  functions  and 
duties  of  a  judge  to  investigate  those  reasons;  that  he  is 
an  investigator  as  much  as,  in  his  sphere,  was  Sir  Isaac 
Newton;  that  he  may  make  mistakes,  just  as  Newton  did; 
and  yet  that  truth  is  largely  discovered  by  his  means. 
But  the  difference  between  the  judges  and  Sir  Isaac  is  that 
a  mistake  by  Sir  Isaac  in  calculating  the  orbit  of  the 
earth  would  not  send  it  spinning  round  the  sun  with  an 
increased  velocity;  his  answer  to  the  problem  would  be 
simply  wrong;  while  if  the  judges,  in  investigating  the 
reasons  on  which  the  Law  should  be  based,  come  to  a 
wrong  result,  and  give  forth  a  rule  which  is  discordant 
with  the  eternal  verities,  it  is  none  the  less  Law.  The 
planet  can  safely  neglect  Sir  Isaac  Newton,  but  the  in- 
habitants thereof  have  got  to  obey  the  assumed  pernicious 
and  immoral  rules  which  the  courts  are  laying  down,  or  Decisions 


as 


they  will  be  handed  over  to  the  sheriff.  conclusive 

T.  .,,  ,  ,.       evidence 

It  is  possible  to  state  the  tacts  in  the  terms  of  dis-  of  the  Law 


102          THE  NATURE  AND  SOURCES  OF  THE  LAW 

covery  by  use  of  a  device  familiar  enough,  in  the  Common 
Law.  We  may  say  that  the  rule  has  always  existed,  and 
that  the  opinions  and  consequent  action  of  the  judges  are 
only  conclusive  evidence  that  such  is  the  rule;  but  this  is 
merely  a  form  of  words  to  hide  the  truth.  Conclusive 
evidence  is  not  evidence  at  all;  it  is  something  which 
takes  the  place  of  evidence  and  of  the  thing  to  be  proved, 
as  well.  When  we  say  that  men  are  conclusively  presumed 
to  know  the  Criminal  Law,  we  mean  that  men  are  to  be 
punished  for  certain  acts  without  regard  to  whether  they 
know  them  to  be  against  the  Law  or  not ;  when  we  say  that 
the  registration  of  a  deed  is  conclusive  evidence  against 
all  the  world,  we  mean  that  all  the  world  are  bound  by  a 
registered  deed  whether  they  know  or  not  of  its  existence.1 
Rules  of  conduct  laid  down  and  applied  by  the  courts 
of  a  country  are  coterminous  with  the  Law  of  that  coun- 
try, and  as  the  first  change,  so  does  the  latter  along  with 
them.  Bishop  Hoadly  has  said:  "Whoever  hath  an 
absolute  authority  to  interpret  any  written  or  spoken  laws, 
it  is  he  who  is  truly  the  Law-giver  to  all  intents  and  pur- 
poses, and  not  the  person  who  first  wrote  or  spoke  them"  ;2 
a  fortiori,  whoever  hath  an  absolute  authority  not  only 
to  interpret  the  Law,  but  to  say  what  the  Law  is,  is  truly 
the  Law-giver.  Entia  non  multipUcanda.  There  seems 
to  be  nothing  gained  by  seeking  to  discover  the  sources, 
purposes,  and  relations  of  a  mysterious  entity  called  "The 
Law,"  and  then  to  say  this  Law  is  exactly  expressed  in 
the  rules  by  which  the  courts  decide  cases.  It  is  better 
to  consider  directly  the  sources,  purposes,  and  relations 

*Cf.  p.  36,  ante. 

'  Benjamin   Hoadly,   Bishop  of   Bangor,   Sermon   preached  before 
the  King,  1717,  p.  12. 


THE  LAW  103 

of  the  rules  themselves,  and  to  call  the  rules  "The  Law." 
There  is  a  feeling  that  makes  one  hesitate  to  accept  the 
theory  that  the  rules  followed  by  the  courts  constitute 
the  Law,  in  that  it  seems  to  be  approaching  the  Law  from 
the  clinical  or  therapeutic  side;  that  it  is  as  if  one  were 
to  define  medicine  as  the  science  of  the  rules  by  which  phy- 
sicians diagnose  and  treat  diseases;  but  the  difference 
lies  in  this,  that  the  physicians  have  not  received  from 
the  ruler  of  the  world  any  commission  to  decide  what  dis- 
eases are,  to  kill  or  to  cure  according  to  their  opinion 
whether  a  sickness  is  mortal ;  whereas,  this  is  exactly  what 
the  judges  do  with  regard  to  the  cases  brought  before 
them.  If  the  judges  of  a  country  decide  that  it  is  Law 
that  a  man  whose  reservoir  bursts  must  pay  the  damage, 
Law  it  is;  but  all  the  doctors  in  town  may  declare  that  a 
man  has  the  yellow  fever,  and  yet  he  may  have  only  the 
German  measles.  If  when  a  board  of  physicians  pro- 
nounced that  Titius  had  the  colic,  ipso  facto  Titius  did 
have  the  colic,  then  I  conceive  the  suggested  definition  of 
medicine  would  be  unobjectionable. 

To  sum  up.  The  State  exists  for  the  protection  and 
forwarding  of  human  interests,  mainly  through  the  me- 
dium of  rights  and  duties.  If  every  member  of  the  State 
knew  perfectly  his  own  rights  and  duties,  and  the  rights 
and  duties  of  everybody  else,  the  State  would  need  no 
judicial  organs ; '  administrative  organs  would  suffice.  But 
there  is  no  such  universal  knowledge.  To  determine, 
in  actual  life,  what  are  the  rights  and  duties  of  the  State 
and  of  its  citizens,  the  State  needs  and  establishes  judicial 
organs,  the  judges.  To  determine  rights  and  duties,  the 
judges  settle  what  facts  exist,  and  also  lay  down  rules 


104          THE  NATURE  AND  SOURCES  OF  THE  LAW 

according  to  which  they  deduce  legal  consequences  from 
facts.    These  rules  are  the  Law.1 


Law  distin-  There  are  one  or  two  other  matters  connected  with  the 
from  other  Law  which  remain  for  consideration:  First,  The  rules 
conduct  which  constitute  the  Law  of  a  community  are  dis- 
tinguished from  the  other  rules  by  which  members  of  the 
community  govern  their  conduct  by  the  fact  that  the  for- 
mer are  the  rules  laid  down  by  the  courts  of  the  commu- 
nity in  accordance  with  which  they  make  their  decrees. 
Very  often  these  rules  are  overridden  in  the  mind  of  i\ 
member  of  a  community  by  other  rules,  of  supposed  mo- 
rality, for  instance,  or  of  fashion,  as  where  a  man  aids  a 
runaway  slave,  or  fights  a  duel.  And  again,  when  the 
conduct  prescribed  by  the  rules  of  Law  is  followed,  the  fact 
that  those  rules  are  laid  down  by  the  courts  is  not  always, 
nor  generally,  the  chief  or  predominant  motive  in  the 
minds  of  those  who  follow  them.  The  motive  that  re- 
strains Titius  from  killing  Balbus,  or  deters  John  Doe 
from  taking  Richard  Roe's  handkerchief  out  of  his  pocket, 
is  not  primarily  that  the  one  fears  being  hanged  or  the 
other  fears  being  sent  to  jail;  it  is  some  other  reason, 
religious,  moral,  social,  sentimental,  or  esthetic,  which 
moves  him.  There  is  generally  no  occasion  for  the  courts 
to  apply  their  rules,  but  the  fact  that  the  courts  will  ap- 
ply them,  if  necessary,  makes  them  the  Law. 

1  The  Law  has  sometimes  been  said  to  be  the  rules  which  the 
courts  win  follow.  See  Judge  Holmes's  article,  10  Harvard  Caw 
Rev.  457 ;  Collected  Legal  Papers,  167 ;  and  his  opinion  in  American 
Banana  Co.  v.  United  Fruit  Co.,  213  U.  S.  347,  356.  When  this  form 
of  expression  is  used,  we  must  not  say  in  reference  to  a  case  like 
that  suggested  at  p.  96,  ante,  that  there  was  then  no  law  on  the 
subject  in  Nevada,  but  we  must  say  that  it  was  not  then  known  what 
the  Law  would  be. 


THE  LAW  105 

Further,  when  persons  do  not  voluntarily  act  in  accord- 
ance with  the  rules  laid  down  by  the  courts,  but  are  com- 
pelled thereto  by  force,  the  force  is  often  applied,  not 
in  consequence  of  a  judicial  order,  but  by  the  persons 
directly  interested  in  having  the  rules  followed  or  by 
some  administrative  officer  not  acting  under  judicial 
authority, — as  when  Stiles  expels  Batkins  as  a  trespasser 
from  his  domestic  castle,  or  policeman  X.  arrests  Watkins 
for  being  drunk  and  disorderly.1  But  in  all  such  cases, 
the  rules  are  Law,  because,  in  the  ultimate  resort,  the 
judges  will  apply  them  in  protecting  Stiles  and  the  police- 
man against  any  violent  acts  or  any  prosecution  in  the 
courts  by  the  intrusive  Batkins  or  the  vagabond  Watkins. 

Second.  Suppose,  however,  that  the  bulk  of  the  com-  The  Law 
munity  habitually  act  contrary  to  certain  rules  laid  down  always 
by  the  courts, — will  you  call  such  rules  Law  ?  The  ques- 
tion is  the  same  when  asked  with  regard  to  those  rules 
which  the  judges  lay  down  in  compliance  with  statutes 
passed  by  the  legislative  organ  of  the  State,  as  in  re- 
gard to  those  which  they  frame  of  their  own  motion. 
Suppose  the  Legislature  enacts  a  statute  which  is  so 
odious  to  the  inhabitants  of  the  State  that  the  bulk  of  the 
community  disobey  it  from  the  start,  and  yet  the  judges 
declare  that  it  has  been  duly  and  constitutionally  enacted. 
In  countries  where  statutes  can  be  abrogated  by  disuse 
(a  matter  which  we  shall  afterwards  consider  2),  the  courts 
may,  after  a  space  of  time,  declare  that  such  a  statute  is 
no  longer  to  be  considered  binding,  but  we  are  here  con- 
sidering a  case  where  the  courts  lay  down  a  rule  in  ac- 
cordance with  the  statute.  Is  such  a  rule  Law  ?  I  submit 

1See   p.   21,   ante. 
*Pp.    189,    et   seq.    post. 


106          THE  NATURE  AND  SOURCES  OF  THE  LAW 

that  it  is  most  in  accordance  with  usage,  and  most  conven- 
ient in  practice,  to  consider  the  declaration  of  the  courts 
following  the  action  of  the  Legislature  as  being  "the 
Law."  If  there  is  a  statute  recognized  by  the  courts 
forbidding  the  sale  of  wine,  and  yet  wine  is  sold  publicly 
and  with  impunity,  it  seems  best  to  say,  not  that  the  Law 
allows  the  sale  of  wine,  but  that  the  Law  against  the  sale 
of  wine  is  disregarded.  And  it  must  be  the  same,  as  I 
have  said,  whether  the  declaration  of  the  court  is  founded 
on  a  statute  or  is  derived  from  any  of  the  other  sources 
of  the  Law.1 

In  certain  of  these  cases,  an  unnecessary  difficulty 
arises  from  misunderstanding  what  the  Law  is.  Let  us  take 
such  a  case  as  I  have  suggested:  Suppose  that  in  one  of 
the  United  States  there  is  a  statute  providing  that  who- 
ever sells  wine  shall  be  punished  by  fine  or  imprisonment, 
and  suppose,  further,  that  the  statute  is  so  hated  that 
juries  will  not  convict.  This  statute,  being  followed  by 
the  courts,  is  an  element  of  the  Law  in  the  State,  but  it 
is  not  the  whole  of  the  Law.  It  is  also  doubtless  Law  in 
the  State  that  no  one  shall  be  punished  for  crime  except 
after  being  found  guilty  by  a  jury.  The  whole  Law  must 
be  taken  together.  We  say  the  Law  is  that  a  man  selling 
wine  shall  be  punished,  but  in  truth  the  Law  is,  that  a 
man  selling  wine  and  convicted  thereof  by  a  jury  shall  be 
punished.  If  there  has  been  no  conviction  by  a  jury,  one 
of  the  elements  which  the  Law  declares  necessary  for  the 
infliction  of  the  punishment  does  not  exist.  In  old  statutes 
this  essential  element  is  often  expressed,  e.g.  St.  14  Eliz. 
c.  3 :  "If  any  person  or  persons"  shall  counterfeit  coin, 

1  See,  however,  what  is  said  on  the  limits  of  judicial  power    pp. 
121  et  seq.  post. 


THE  LAW  107 

"the  offenders  therein,  being  convict  according  to  the 
laws  of  this  realm  of  such  offenses,  shall  be  imprisoned," 
etc. 

Third.     To  say  that  the  Law  of  an  organized  body  is  The  Law 

17  .  ni  consists 

composed  of  the  rules  acted  on  by  its  courts  would  be  too  of  rules 

*  *  made  by 

broad.     It  is  only  the  rules  which  the  courts  lay  down  of  the  state 
their  own  motion,  or  which  they  follow  as  being  prescribed 
for  them  by  the  body  of  which  they  are  the  courts,  that, 
according  to  the  ordinary  usage  of  language,  can  be  called 
the  Law  of  that  body. 

Take,  for  instance,  the  courts  of  a  political  society. 
They  have  constantly,  in  the  causes  brought  before  them, 
to  apply  general  rules  of  conduct  which  are  yet  not  laws. 
Thus,  A.  and  B.  may  enter  into  an  agreement  by  which 
A.,  for  a  consideration,  expressly  or  impliedly  promises 
to  obey  the  commands  of  B.  on  certain  matters;  those 
commands  may  take  the  form  of  general  rules;  and  the 
existence  and  validity  of  such  a  rule  may  be  brought 
in  question  in  a  court  of  law.  In  most  cases  where  the 
legal  relation  of  master  and  servant  is  established  there 
are  such  general  rules.  Gladys,  who  has  hired  Norah  for 
a  housemaid,  dismisses  her  for  misconduct;  Norah  sues 
for  her  wages;  the  alleged  misconduct  is  the  not  wear- 
ing of  a  cap;  the  existence  of  a  rule  requiring  the  wear- 
ing of  a  cap,  its  legality  and  scope,  may  all  have  to  be 
determined  by  the  court,  yet  Gladys's  household  ordi- 
nance is  not  the  Law  of  the  land. 

It  may  be  said  that  such  rules  are  made  by  agreement 
of  the  parties,  and  are  given  by  them  to  the  court  as  rules 
by  which,  in  controversies  between  them,  it  is  to  decide. 
But  such  rules  do  not  always  spring  from  contract.  In 
many  communities,  the  relations  between  master  and 


108          THE  NATURE  AND  SOURCES  OF  THE  LAW 

slave  have  formed  an  important  topic  in  the  Law;  and  at 
the  present  day,  in  all  countries,  a  father  has  authority 
to  make  rules  on  many  subjects  for  his  children,  e.g.  that 
they  are  to  live  in  such  a  place,  or  are  to  go  to  bed  at  a 
certain  hour.  But  these  rules  are  no  part  of  the  Law, 
as  commonly  understood,  though  they  can  conceivably 
come  before  a  court,  and  the  court  must  pass  in  its  de- 
cision upon  their  existence  and  validity. 

A  class  of  these  rules  forming  no  part  of  the  Law  of  a 
country,  and  yet  daily  discussed  and  applied  by  its  courts, 
are  the  by-laws  of  corporations.  It  would  seem  as  if  Aus- 
tin 1  counted  the  by-laws  of  corporations  as  part  of  the 
Law  of  the  land  existing  as  Law  by  the  express  or  tacit 
authority  of  the  supreme  legislature.  He  makes  them  a 
part  of  the  Law  in  the  same  manner  in  which  he  brings 
judicial  precedents  under  that  head.  He  considers  both 
by-laws  and  judicial  precedents  to  be  commands  of  the 
sovereign,  by  virtue  of  the  doctrine  that  what  the  sovereign 
permits  he  commands. 

But  there  seems  to  be  no  distinction  between  the  valid 
regulations  of  a  corporation  and  the  valid  regulations  of 
a  paterfamilias.  I  should  suppose  Austin  would  hardly 
make  these  last  part  of  the  Law  of  the  land.  To  do  so 
would  amount  to  saying  that  all  commands  not  directed  to 
particular  acts  which  the  State  allows  to  be  made  and  en- 
forced by  any  reward  or  punishment  are  part  of  the  Law 
of  the  land, — a  nomenclature,  to  say  the  least,  very  in- 
convenient, and  a  wide  departure  from  usage,  both  popu- 

Laws  of         -i  j  /•       •         i 

bodies  lar  and  professional. 

the  state  It  should  be  borne  in  mind  that  rules,  although  not 

*2  Jur.  c.  28  (4th  ed.)  p.  538. 


THE  LAW  109 ' 

the  Law  of  the  State,  may  yet  be  the  Law  of  another 
organized  body.  Thus,  the  by-laws  of  a  private  corpora- 
tion may  be  part  of  the  Law  of  the  organized  body  which 
that  corporation  is,  and  yet  not  be  part  of  the  Law  of  the 
land.  So  the  rules  by  which  Titius  governs  his  children 
are  no  part  of  the  Law  of  Titius's  State,  but  they  may  all 
the  same  be  part  of  the  Law  of  Titius's  family. 

Swch  organizations  may  be  the  creatures  of  the  State, 
as  insurance  or  other  business  corporations;  or  they  may 
be  independent  of  the  State,  as  the  Roman  Catholic 
Church ;  or  even  hostile  to  it,  as  a  Nihilist  club ;  but  that 
is  immaterial  on  the  question  whether  such  an  organiza- 
tion has  its  own  Law.  It  is  true  that  an  interest  which 
a  member  of  a  club,  for  instance,  may  have  that  another 
member  of  the  club  itself  should  do  or  forbear,  may  be 
protected  by  the  State  by  virtue  of  some  rule  which  the 
courts  of  the  State  follow, — say,  with  regard  to  con- 
tracts generally, — or  may  be  denied  protection  by  the 
State  by  virtue  of  some  rule  which  the  courts  of  the  State 
follow, — say  with  regard  to  gambling, — but  apart  from  its 
relations  with  the  State,  if  any  organized  body  of  men  has 
persons  or  bodies  appointed  to  decide  questions,  then  that 
body  has  judges  or  courts,  and  if  those  judges  or  courts  in 
their  determinations  follow  general  rules,  then  the  body 
has  Law  and  the  members  of  the  body  may  have  rights 
under  that  Law.  Thus,  the  Roman  Catholic  Church  has 
courts  and  a  Law,  and  by  virtue  of  its  power  in  inflicting 
excommunication  and  other  spiritual  censures,  it  gives 
rights  to  itself  and  its  members.1 

1The  peculiar  history  of  the  Church  of  England,  the  compromise   The 
between  temporal  and  spiritual  interests  which  was  effected  at  the   Church 
Keformation,  and  the  fundamental  differences  among  its  members    of  Enelan« 


110          THE  NATURE  AND  SOURCES  OF  THE  LAW 
3enerai  Fourth.     One  question  more  presents  itself:     Are  all 

administra- 
tive rules      the  general  rules  for  conduct  made  by  the  administrative 
are  laws  ' 

organs  of  a  political  (or  other)  organization  to  be  called 
"laws"  ?  Or  is  there  a  class  of  such  rules  to  which  the 
name  of  "laws"  is  to  be  denied  ? 

We  must  bear  in  mind  the  distinction  to  which  I  have 
referred  between  a  law  and  the  Law,  as  those  terms  are 
generally  employed.1  A  law  is  a  formal  general  command 
of  the  State  or  other  organized  body;  the  Law  is  the 
body  of  rules  which  the  courts  of  that  body  apply  in 
deciding  cases.  So  there  are  really  two  questions:  First, 
is  a  general  order  of  an  administrative  organ  of  an  organ- 

as  to  the  grounds  on  which  its  frame  of  government  rests,  make  it 
difficult  to  say  whether  that  frame,  in  the  opinion  of  its  judges, 
has  its  foundation  in  the  revealed  will  of  God  or  in  Acts  of  Par- 
liament. The  range  of  opinion  within  it  extends  from  those  dwell- 
ers in  an  ecclesiastical  Tooley  Street,  who  regu*-l  themselves  as  the 
remnant  from  which  all  other  Christian  bodies,  Greek,  Roman, 
and  Protestant,  are  parted  by  schism,  to  that  keeper  of  the  King's 
conscience  who  said  to  a  delegation  of  Presbyterians,  "Gentlemen, 
I  am  against  you  and  for  the  Established  Church.  Not  that  I 
like  the  Established  Church  a  bit  better  than  any  other  church, 
but  because  it  is  established.  And  whenever  you  get  your  damned 
religion  established,  I'll  be  for  that  too."  (Lord  Thurlow.  See 
Campbell's  Lives  of  the  Chancellors  (5th  ed.),  vol.  7,  p.  319).  Sir 
Robert  Phillimore  and  Lord  Westbury  were  both  judges  in  the  Eng- 
lish Church,  but  it  is  likely  that  they  held  very  different  theories 
as  to  the  grounds  on  which  the  hierarchy  of  that  Church  is  based. 
But  it  is  not  easy  to  believe  that  a  religious  organization,  whose 
highest  court  is  the  Judicial  Committee  of  His  Majesty's  Privy 
Council,  was  ever  revealed  directly  or  impliedly  from  Heaven;  and 
the  true  doctrine  would  seem  to  be  that  the  English  Church  owes 
its  constitution  to  the  State,  and  that  although,  in  the  opinion  of 
many  of  its  members,  it  would  be  sinful  in  the  State  to  give  it 
any  other  constitution,  yet  the  judges  of  the  Church  must  look  to 
the  Law  of  the  land,  to  the  King's  Ecclesiastical  Law,  to  determine 
the  nature  of  the  organization  whose  judges  they  are,  and  that 
so  long  as  the  Church  is  established,  it  is  practically  impossible 
that  it  should  be  otherwise.  The  report  of  the  Hampden  Case 
(11  Queen's  Bench  Reports,  483  (1848)  ;  and  full  report  by  R.  Jebb) 
will  be  found  instructive  on  this  point. 
*P.  87,  ante. 


THE  LAW  111 

ized  body  a  law  of  that  body  ?    Secondly,  is  such  an  order 
a  source  of  the  Law  of  that  body  ? 

Such  an  order  certainly  seems  to  be  a  command  of  the 
organized  body  and,  therefore,  a  law  of  that  body.  To 
take  cases  like  those  which  Mr.  Frederic  Harrison  sug- 
gests as  showing  that  there  are  rules  of  the  State  which 
are  not  laws;  a  regulation  by  the  proper  authority  (or, 
indeed,  by  the  supreme  legislature)  that  all  recruits  for 
the  army  shall  be  five  feet  six  inches  high,  or  a  direction 
in  the  infantry  tactics  that  the  goose  step  shall  be  twenty- 
eight  inches,  or  an  order  by  the  commandant  of  a  fort 
that  a  sentry  shall  always  be  posted  before  a  certain 
cellar.1  Are  such  regulations,  directions,  and  orders 
laws?  They  are  unquestionably  commands  with  sanc- 
tions; they  are  of  a  general  and  permanent  character; 
they  are  formally  issued  by  a  person  empowered  by  the 
State  to  issue  them  and  they  are  issued  on  behalf  of  an'l 
for  the  supposed  advantage  of  the  State.  They  seem  to 
be  as  much  laws  of  the  State  as  statutes  passed  by  its 
legislative  organ. 

Are  these  regulations  and  orders  sources  of  the  Law? 
It  is  hard  to  imagine  any  of  them  which  may  not  be 
brought  before  a  court  for  application  and  whose  ultimate 
sanction  is  not  that  the  courts  will  apply  to  them.  Let  us 
take  one  of  Mr.  Harrison's  instances, — a  regulation  from 
the  British  War  Office  that  no  recruit  shall  be  enlisted 
who  is  not  five  feet  six  inches  high.  Suppose  a  recruit- 
ing officer  musters  in  a  man  who  is  five  feet  five  inches 
only  in  height,  and  pays  him  the  King's  shilling;  after- 
wards the  officer  is  sued  by  the  Government  for  being 

1 30  Fortnightly  Rev.,  690 ;  Jurisprudence  and  the  Conflict  of 
Laws,  p.  49. 


112         THE  NATURE  AND  SOURCES  OF  THE  LAW 

short  in  his  accounts;  among  other  items  he  claims  to  be 
allowed  the  shilling  paid  to  the  undersized  recruit.  The 
court  has  to  consider  and  apply  this  regulation  and,  what- 
ever its  effect  may  be,  that  effect  will  be  given  to  it  by 
the  court  exactly  as  effect  will  be  given  to  a  statute  pro- 
viding that  murderers  shall  be  hanged,  or  that  last  wills 
must  have  two  witnesses. 

It  is,  therefore,  on  the  best  consideration  I  can  give 
the  subject,  impossible  to  say  that  any  general  rule  of 
conduct  laid  down  by  an  administrative  organ  of  a  political 
(or  other)  organized  body,  and  applied,  if  necessary,  by 
its  courts,  is  not  a  source  of  Law. 


CHAPTEK  V 


THE    COURTS 

THE  Law  of  an  organized  body,  political  or  other, 
being  the  rules  laid  down  by  the  judicial  department  of 
that  body,  it  is  now  necessary  to  consider  courts  or  judges ; 
I  use  the  terms  as  synonymous. 

It  is,  of  course,  not  necessary  that  a  judge  be  called  by  Office 
that  name;  it  is  the  functions  which  he  exercises,  and  Judge 
not  the  name  by  which  he  is  called,  that  mark  his  essen- 
tial character.  Thus,  the  Lord  High  Chancellor  of  Eng- 
land is  a  judge.  And,  further,  persons  having  judicial 
functions  may  have  also  functions  which  are  not  judicial. 
Thus,  the  Lord  Chancellor,  again,  is  not  only  a  judge, 
he  presides  over  the  House  of  Lords  and  dispenses  much 
of  the  ecclesiastical  patronage  of  the  Crown.  In  some 
primitive  communities,  the  legislative,  judicial,  and  ad- 
ministrative powers  are  united  in  the  same  persons  or  in 
a  single  individual.1 

1The  distinction  between  administrative  and  judicial  functions, 
when  exercised  by  the  same  person,  is  happily  illustrated  in  the 
case  of  the  visitor  of  a  college.  Visitors  have  two  functions.  The 
first  is  to  visit  the  college,  proprio  motu,  without  being  called 
thereto  by  any  one.  Such  visitations  were  originally  liable  to  great 
abuses.  When  the  visitor,  who  was  generally  a  bishop,  wanted"  to 
go  on  a  junket,  he  visited  a  college,  with  a  great  train  of  chaplains 
and  retainers,  and  lived  at  free  quarters,  to  the  great  oppression 
and  impoverishment  of  the  college.  The  founders  of  the  colleges 
in  Oxford  and  Cambridge,  therefore,  perceiving  that  visitations 
were  not  unmixed  blessings,  often  provided,  in  establishing  the 

113 


114          THE  NATURE  AND  SOURCES  OF  THE  LAW 

A  judge  of  an  organized  body  is  a  man  appointed  by 
that  body  to  determine  duties  and  the  corresponding 
rights  upon  the  application  of  persons  claiming  those 
rights.  It  is  the  fact  that  such  application  must  be  made 
to  him,  which  distinguishes  a  judge  from  an  administra- 
tive officer. 

The  essence  of  a  judge's  office  is  that  he  shall  be  im- 
partial, that  he  is  to  sit  apart,  is  not  to  interfere  volun- 
tarily in  affairs,  is  not  to  act  sua  sponte,  but  is  to  deter- 
mine cases  which  are  presented  to  him.  To  use  the  phrase 

statutes  of  their  foundations,  that  a  visitation  should  not  be  held 
more  frequently  than  once  in  three  or  five  years.  The  college  was 
liable  to  support  the  bishop  and  to  have  every  corner  and  nook 
poked  into  at  his  will  in  every  third  or  fifth  year;  but  that  once 
over,  there  was  to  be  rest  and  recuperation  during  another  three 
or  five  years.  Visitations  of  this  kind  were  called  general  visita- 
tions. But  besides  this  function  of  making  a  general  visitation,  a 
visitor  of  a  college  has  another,  a  judicial,  function.  It  is  his 
duty  to  hear  complaints  of  members  of  the  college  against  the 
Master  and  Fellows,  or  other  governing  body,  of  the  Master  and 
Fellows  against  any  member,  and  of  one  member  against  another. 
These  complaints  can  be  made  at  any  time,  and  the  visitor  can 
hear  them  at  once.  In  hearing  them  he  is  acting  in  a  judicial  ca- 
pacity, and  his  court  is  always  open;  while  at  a  general  visitation 
he  is  acting  in  an  administrative  capacity.  The  difference  between 
these  two  functions  of  a  visitor  of  a  college  was  pointed  out  by 
Lord  Chief  Justice  Holt  in  the  classical  passage  of  his  opinion  in 
Philips  V.  Bury,  2  T.R.  346,  348.  "Now  though  the  visitor  be 
restrained  by  the  constitutions  of  the  college  from  visiting  ex  of- 
fitio  more  than  once  in  five  years,  yet  as  visitor  he  has  a  standing 
constant  authority  at  all  times  to  hear  the  complaints  and  redress 
the  grievances  of  the  particular  members.  .  .  .  For  visiting  is  one 
act,  in  which  he  is  limited  in  time;  but  hearing  appeals  and  re- 
dressing grievances  is  his  proper  office  and  work  at  all  times." 

The  same  learned  Chief  Justice's  strong  opinion  on  the  im- 
mutable distinction  between  administrative  and  judicial  functions 
was  shown  by  his  answer  to  one  who  declared  himself  sent  by  the 
Holy  Ghost  to  bid  the  Chief  Justice  enter  a  nolle  prosequi  in  the 
case  of  a  prisoner:  "Thou  art  a  lying  knave;  if  the  Holy  Ghost  had 
sent  thee,  he  would  have  sent  thee  to  His  Majesty's  Attorney  Gen- 
eral and  not  to  me,  for  the  Holy  Ghost  knows  well  I  have  no  power 
to  enter  a  nolle  prosequi."  ( "I  do  not  wish  to  prosecute,"  the  form 
used  in  discontinuing  a  criminal  prosecution.)  For  varying  versions 
of  the  anecdote,  see  3  Campbell's  Lives  of  the  Chief  Justices,  3d  ed., 
p.  9;  Diet,  of  National  Biography,  "Holt,"  near  end. 


THE  COURTS  115 

of  the  English  Ecclesiastical  courts,  the  office  of  the  judge 
must  be  promoted  by  some  one. 

A  judge's  usual  function  is  to  determine  controversies 
between  parties,  of  which  parties  the  State,  or  other  or- 
ganized body,  whose  judge  he  is,  may  be  one.  Even  if 
in  non-contentious  proceedings  a  judge  cannot  be  said  to 
determine  an  actual  controversy,  application  must  be  made 
to  him  by  some  one  interested  in  having  a  matter  de- 
termined, in  order  to  fix  rights  and  prevent  a  contro- 
versy arising.  Thus,  in  granting  probate  of  an  undis- 
puted last  will,  which  is  an  extreme  case  of  a  non-con- 
tentious proceeding,  the  judge  is  determining  a  question, 
— viz.,  whether  a  certain  paper  is  the  last  will  of  a  deceased 
person, — in  order  to  prevent  controversies  between  people 
interested,  or  claiming  to  be  interested,  in  the  succession 
to  the  estate  of  the  deceased;  and  he  grants  probate,  not 
of  his  own  motion,  but  on  the  application  of  the  executor. 
If  no  application  is  made  to  him,  the  testamentary  paper 
remains  without  probate;  so  also  in  voluntary  insolvency 
proceedings. 

A  judge  is  to  determine  rights.  He  may  be,  and  often 
is,  given  authority  to  enforce  his  decision,  but  this  is  not 
necessary.  The  function  of  determination  is  the  essential 
element  in  the  judicial  position.  The  power  to  enforce 
the  decision  is  accidental. 

Sometimes,  even,  the  decision  of  the  court  of  an  or-  Power  to 

1  '  enforce 

ganized  body  other  than  the  State  is  enforced,  not  by  that  decisions 
body,  but  by  the  State.     Thus,  in  other  days,  after  a  essential 
Church  court  had  adjudged  a  person  to  be  a  heretic,  and 
"foro  Seculari  relinquendum  esse  decrevit  .  .  .  ac  Sancta 
Mater  Ecclesia  non  Jiabet  ulterius  quid  faciai  in  prce- 
missis" :  it  was  the   State  which   issued   the  writ  De 


116           THE  NATURE  AND  SOURCES  OF  THE  LAW 

hceretico  comburendo;  *  and  in  the  United  States,  at  the 
present  day,  the  judgment  of  a  Church  court  has  often 
to  be  enforced  by  an  action  of  ejectment  or  of  tort  in 
the  civil  courts.2 

Even  when  the  organized  body  in  question  is  the  State, 
the  function  of  some  of  its  courts  may  be  only  that  of 
determination.  Thus,  a  court  of  probate  decides  whether 
a  person  had  died  testate  or  intestate,  and  thereby  fixes 
the  rights  of  persons  claiming  to  be  legatees  or  next  of 
kin;  but  it  may  have  no  machinery  for  enforcing  these 
rights. 

Although  power  to  enforce  his  decrees  is  not  necessary 
to  constitute  a  man  a  judge,  yet  there  is  a  means  some- 
where of  enforcing  them.  Take  the  case  just  suggested: 
The  judge  of  a  probate  court  may  have  no  power  to  en- 
force his  decrees,  yet  if  one  who  is  named  executor  in 
a  testamentary  paper  obtains  probate  of  it,  he  can  enforce 
his  claim  as  executor  in  the  Common  Law  courts,  which 
he  could  not  do  in  the  absence  of  probate. 

There  may  sometimes  be  a  difference  of  opinion  be- 
tween the  courts  of  the  same  political  or  other  organiza- 
tion. They  may  apply  different  rules.  What,  in  that 
case,  is  the  Law  of  such  organization?  It  is  the  rule 
generally  followed.  If  the  courts  generally  of  a  country 
follow  certain  rules,  those  rules  do  not  cease  to  be  the 
Law  because  of  a  sporadic  departure  from  them  by  a  par- 
ticular judge.  A  judge  once  decided  in  Massachusetts 

1  "Shall  have  decreed  that  he  must  be  relinquished  to  the  Secular 
tribunal,  .  .  .  and  Holy  Mother  Church  has  nothing  further  to  do 
in  the  premises."  1  Gibson,  Codex  (2d  ed.)  338,  note. 

•E.g.  in  Watson  v.  Jones,  13  Wall.  679. 


THE  COURTS  117 

that  payment  on  Sunday  was  no  discharge  of  a  debt,  but 
that  has  never  been  the  Law  of  Massachusetts.1 

A  permanent  difference  of  opinion  between  courts  of 
the  same  organized  body  is  usually  prevented  by  the  fact 
that,  in  most  organizations  having  several  courts  or  judges, 
there  is  a  supreme  appellate  tribunal,  to  which  all  the 
other  courts  are  subordinate.  When  such  is  the  case,  the 
rules  followed  by  the  supreme  tribunal  are  the  Law  of 
the  organization.  It  is  true,  as  we  shall  see  later,  when 
we  come  to  consider  the  subject  of  Judicial  Precedents, 
that  on  the  modern  theory,  if  not  in  the  practice,  of  the 
Germans,  decisions  of  appellate  courts  are  not  sources  of 
Law  to  the  lower  courts;2  but  although,  in  determining 
what  is  the  Law  now,  that  is,  what  are  the  rules  which  the 
courts  will  now  apply,  a  court  of  first  instance  may  not 
now  be  bound  by  a  past  decision  of  an  appellate  court, 
as  a  precedent,  yet  even  assuming  this  to  be  so,  still  upon 
a  question  as  to  what  was  the  Law  of  the  organization 
at  that  past  time,  it  would  seem  as  if  the  rule  which  was 
followed  by  the  court  that  then  had  the  final  power  of 
determination  was  the  Law  at  that  time. 

Sometimes,  however,  perhaps  (1)  there  may  be  coor- 
dinate courts  of  one  political  body,  with  the  same  powers, 
and  no  common  superior;  or  (2)  there  may  be  inde- 
pendent courts  for  different  matters,  each  of  which  is 
supreme  in  its  sphere,  as  is  probably  the  case  with  the 
House  of  Lords  and  the  Judicial  Committee  of  the  Privy 
Council  in  England;3  or,  (3)  what  is  a  very  common 

*See  Johnson  v.  Willis,  1  Gray,  164. 
•P.  209,  post. 

*Dulieu  v.  White  &  Sons,  [1901]  2  K.  B.  669,  677,  683;  Smith  v. 
Brown,  L.  R.  6  Q.  B.  729,  736. 


118          THE  NATURE  AND  SOURCES  OF  THE  LAW 

arrangement  in  the  United   States,   cases  involving  an 
amount  above  a  certain  sum  may  be  carried  to  an  appel- 
late court,  while  those  involving  a  less  amount  cannot  be. 
independent      (1)   In  the  case  where  there  are  two  or  more  coordinate 

coordinate  ..    ,  .         , 

courts  courts  of  the  same  organization,  having  no  common  supe- 
rior, and  yet  having  the  same  territorial  jurisdiction,  the 
same  jurisdiction  of  persons  and  causes,  and  the  same 
powers,  and  these  courts  habitually  follow  different  rules 
on  any  point,  I  do  not  see  how  we  can  avoid  saying  that 
the  organization  has  no  Law  on  that  point.  It  is  to  be 
observed  that  the  existence  of  such  an  anarchic  condition 
of  things  is  vastly  improbable. 

independent      (2)   Let  us  now  consider  the  case  where  different  classes 

courts  for  .  T-I. 

different       of  action  are  brought,  or  different  remedies  applied,  in 

matters  °     ;  rr         . 

courts  above  which  there  is  no  common  appellate  tribunal. 
For  instance,  suppose  a  suit  against  Edwin  by  one  who 
has  supplied  goods  to  Angelina,  and  also  a  libel  for  di- 
vorce by  Angelina  against  Edwin.  On  the  same  undis- 
puted facts,  the  court  of  Common  Law  might,  as  a  matter 
of  Law,  rule  that  Edwin  and  Angelina  were  never  mar- 
ried, while  the  Divorce  Court  might  rule  that  they  were. 
So  again,  when  a  seaman,  on  the  one  hand,  files  a  libel 
for  his  wages  against  his  ship  in  the  Admiralty,  or,  on 
the  other,  sues  the  ship's  owners  for  them  in  a  court  of 
Common  Law,  the  Admiralty  and  the  Common  Law  might 
follow  different  rules.  In  these  cases,  we  could  not  say 
that  on  such  facts  the  Law  was  that  a  marriage  had  or 
had  not  taken  place,  or  that  a  sailor  had  or  had  not  earned 
his  wages.  We  should  have  to  say  that  on  such  facts  the 
Law  was  that  a  man  could  not  be  made  liable  for  the  debts 
of  a  woman,  but  that  he  could  obtain  a  divorce  from  her 
as  his  wife;  and  that  on  such  other  facts,  the  Law  was 


THE  COURTS  119 

that  a  sailor  could  sue  a  ship,  but  not  the  owners,  or  vice 
versa* 

It  should  be  observed  that,  in  the  case  of  two  courts 
having  different  machineries,  the  rules  which  one  follows 
may  be  said  to  be  the  Law  of  the  land,  though  they  are 
different  from  those  followed  by  the  other.  Thus,  it 
would  not  be  incorrect  to  say  that  it  was  the  Law  of 
England  that,  if  land  was  devised  to  A.  and  his  heirs, 
in  trust  for  B.  and  his  heirs,  A.  could  not  turn  B.  out  of 
possession  of  the  land,  although  A.  could,  before  the  in- 
troduction of  equitable  pleas,  turn  B.  out  by  an  action  of 
ejectment  at  Common  Law,  for  as  Equity  would  enjoin 
A.  from  bringing  ejectment,  the  rules  on  this  subject  in 
the  courts  of  Equity  might  be  said  to  be  the  Law  of  the 
land. 

(3)  Let  us  now  take  the  case  suggested  where  the  right  courts 
of  appeal  is  limited  by  the  amount  involved.     In  coun-  limited 
tries  where  the  doctrines  of  the  English  Common  Law  appeal 
prevail,  there  is  no  difficulty.     The  rules  laid  down  by 
the  higher  court  in  those  cases  which,  being  above  the 
money  limit,  have  been  brought  up  by  appeal,  would  be 
binding  on  the  lower  courts,  and  would  be  followed  by 
them,  as  well  in  those  cases  in  which  the  amount  involved 
was  too  small  to  allow  an  appeal,  as  in  those  cases  which 
could  be  carried  up.     But  in  Germany,   apparently,  it 
would  open  to  a  court  of  first  instance,  if  its  judge  dis- 
agreed with  the  opinion  of  the  appellate  court,  to  con- 
tinue to  decide  finally  cases  below  the  limit  of  appeal 
in  one  and  the  same  way,  although  his  decisions  in  cases 
above  the  limit  were  being  constantly  reversed. 

Suppose,  to  take  a  particular  instance,  that  in  a  coun- 
try where  the  German  doctrine  prevails,  all  the  courts 


120          TKE  NATURE  AND  SOURCES  OF  THE  LAW 

of  first  instance  persist  in  deciding  that  the  holder  of  an 
overdue  coupon  cut  from  a  bond  is  not  entitled  to  interest 
upon  it,  while  the  supreme  tribunal  rules  that  such  holder 
is  entitled  to  interest ;  and  suppose,  also,  that  no  appeal  is 
allowed  when  the  subject-matter  in  dispute  is  of  a  value 
less  than  twenty-five  marks.  Hans  has  a  coupon  for 
twenty  marks  which  has  been  a  year  overdue,  and  Fritz 
has  a  coupon  due  at  the  same  time,  but  which  is  for  the 
sum  of  thirty  marks.  It  seems  absurd  to  say  that  the 
Law  in  that  country  is  that  Hans  cannot  get  interest  on 
his  coupon  and  that  Fritz  can  on  his;  and  even  more 
absurd  to  say  that  if  Hans  has  two  coupons  of  twenty 
marks  each,  or,  if  he  waits  until  a  second  coupon  on  the 
same  bond  has  become  overdue,  and  then  sues  on  both, 
he  can  recover  interest  on  both.  But  yet,  such  is  the 
fact.  The  holder  of  a  single  coupon  will  not  be  helped 
by  the  State  to  the  interest;  he  has  nothing  which  it  will 
protect;  he  has  no  right  to  the  interest.  As  to  it,  he 
stands  as  in  any  other  matter  where,  though  he  may  have 
a  moral  right,  he  has  no  legal  right.  It  is  absurd,  but 
the  absurdity  lies  in  a  theory  of  judicial  organizations 
and  judicial  duty  which  allows  an  inferior  court  to  dis- 
regard a  rule  for  decision  which  a  higher  court  has 
adopted. 

This  is  not  the  place  to  discuss  the  topic  of  conflict 
between  the  Federal  and  State  courts  in  the  United  States, 
for  that  conflict  is  not  between  courts  of  the  same  political 
organization,  but  between  courts  which,  although  they 
may  have  the  same  territorial  jurisdiction,  are  yet  the 
courts  of  different  political  organizations.  The  matter 


THE  COURTS  121 

will  be  discussed  in  the  chapter  on  Judicial  Precedents 
in  the  United  States.1 

Thus  far  we  have  seen  that  the  Law  is  made  up  of  the  LimitB 

of  judicial 

rules  for  decision  which  the  courts  lay  down;  that  all  power 
such  rules  are  Law;  that  rules  for  conduct  which  the 
courts  do  not  apply  are  not  Law;  that  the  fact  that  the 
courts  apply  rules  is  what  makes  them  Law;  that  there 
is  no  mysterious  entity  "The  Law"  apart  from  these  rules ; 
and  that  the  judges  are  rather  the  creators  than  the  dis- 
coverers of  the  Law. 

Is  the  power  of  the  judges,  then,  absolute?  Can  the 
comparatively  few  individuals  who  fill  judicial  position 
in  the  State,  for  instance,  lay  down  rules  for  the  govern- 
ment of  human  intercourse  at  their  bare  pleasure  or 
whim  ?  Not  so ;  the  judges  are  but  organs  of  the  State ; 
they  have  only  such  power  as  the  organization  of  the 
State  gives  them;  and  what  that  organization  is,  is  de- 
termined by  the  wills  of  the  real  rulers  of  the  State. 

Who  are  the  rulers  of  a  State,  is  a  question  of  fact 
and  not  of  form.  In  a  nominal  autocracy,  the  real  rulers 
may  be  a  number  of  court  favorites  or  the  priests  of  a 
religion;  and  in  a  democracy,  the  real  ruler  may  be  a 
demagogue  or  political  boss.2 

It  is  conceivable  that  a  body  of  judges  may  be  the 
ruling  wills  of  a  community,  and  then  they  hold  their 
powers  by  virtue  of  dominating  other  wills,  but  this,  ex- 
cept in  a  very  primitive  community,  can  hardly  ever  be 
the  case.  The  half-a-dozen  elderly  men  sitting  on  a  plat- 

1Pp.  248,  et  seq.  post. 
"Pp.  67-68,  ante. 


122          THE  NATURE  AND  SOURCES  OF  THE  LAW 

form  behind  a  green  or  red  cloth,  with  very  probably  not 
commanding  wills  or  powerful  physique,  can  exercise  their 
functions  only  within  those  limits  which  the  real  rulers  of 
the  State  allow  for  the  exercise;  for  the  State  and  the 
court  as  an  organ  thereof  are  the  product  of  the  wills  of 

those  rulers. 

t 

Who  is  to  determine  whether  the  judges  are  acting 
within  these  limits?  In  all  the  less  important  matters, 
the  rulers  intrust  the  determination  of  this  question  to 
the  judges  themselves;  thus  the  judges  are  allowed  to 
say  what  are  the  details  of  the  organization  of  a  State 
and  the  distribution  of  its  powers  among  its  organs;  but, 
on  the  most  vital  matters,  the  rulers  themselves  determine 
what  the  organization  of  the  body  is  and  within  what 
limits  its  organs  shall  work;  and  the  acts  and  declara- 
tions of  persons,  being  its  organs,  which  are  inconsistent 
with  the  very  nature  of  the  organization,  are  not  acts  and 
declarations  of  the  State — are  not  its  Law. 

How  can  it  be  told  whether  a  rule  laid  down,  by  a 
court  is  to  be  deemed  not  the  Law,  either  because  such 
rule  is  inconsistent  with  the  organization  of  the  State 
as  established  by  its  rulers,  or  because  it  is  beyond  the 
limits  of  the  power  of  the  court  as  fixed  by  those  rulers  ? 
The  principal  evidence  that  declarations  of  judges  are 
inconsistent  with  the  organization  of  the  State,  or  beyond 
the  limits  fixed  by  it  for  their  action,  is  the  opinions  of 
the  members  of  the  community  to  that  effect.  To  deter- 
mine whether  such  opinions  are  so  strong  and  universal 
that  they  must  be  taken  for  the  judgment  of  the  rulers 
of  the  State,  or  whether  the  declarations,  though  much 


THE  COURTS  123 

disregarded,  are  still  to  be  deemed  Law,1  there  seems  to 
be  no  general  definite  rule,  applicable  to  all  cases/' 

It  should  be  observed  that  the  unexpressed,  and,  in 
formal  shape,  inexpressible,  opinion  of  the  rulers  of  so- 
ciety lies  behind  the  Law  none  the  less  in  those  countries 
which  possess  written  constitutions  than  in  those  which 
do  not.  The  organization  and  powers  of  the  ordinary 
legislative  bodies  may  be  indeed  denned  in  a  constitu- 
tion, but  whether  there  was  power  in  any  one  to  bring 
into  effect  the  constitution,  the  constitution  itself  cannot 
determine,  any  more  than  a  book  can  prove  its  own  in- 
spiration, or  a  man  lift  himself  up  by  his  boots.  For 
instance :  What  are  the  geographical  limits  for  which  the 
constitution  is  to  be  in  force  ?  Who  are  to  vote  upon  it, 
— men,  women,  or  children  ?  Can  paupers,  slaves,  aliens, 
vote?  By  what  collections  of  individuals,  such  as  towns 
or  boroughs,  must  representatives  to  frame  a  constitution 
be  chosen?  These  are  questions  that  the  rulers  of  the 
State  must  determine;  their  decision  is  a  prerequisite  for 
the  constitution  coming  into  existence.  The  elephant 
may  rest  on  the  tortoise,  but  in  the  last  result  we  have  to 
go  back  to  the  wills  of  those  who  rule  the  society. 

The  power  of  the  rulers  of  the  State  or  other  com-  indication 

.,        .  f  .,.,..,  .       of  sources 

munity  in  reference  to  its  judicial  organs  or  courts  is  of  the 
exercised  in  a  twofold  way, — first,  by  creating  them,  and 
secondly,  in  laying  down  limits  for  their  action,  or,  in 
other  words,  indicating  the  sources  from  which  they  are 
to  derive  the  rules  which  make  up  the  Law.  From  what 
sources  does  the  State  or  other  community  direct  its  judges 
to  obtain  the  Law  ?  These  sources  are  defined  for  the  most 
part  in  a  very  vague  and  general  way,  but  one  rule 

1See  pp.  105  et  seq.  ante. 


124          THE  NATURE  AND  SOURCES  OF  THE  LAW 

is  clear  and  precise.  The  State  requires  that  the  acts  of 
its  legislative  organ  shall  bind  the  courts,  and  so  far  as 
they  go,  shall  be  paramount  to  all  other  sources.  This 
may  be  said  to  be  a  necessary  consequence  from  the  very 
conception  of  an  organized  community  of  men. 

The  other  sources  from  which  courts  may  draw  their 
general  rules  are  fourfold, — judicial  precedents,  opinions 
of  experts,  customs,  and  principles  of  morality  (using 
morality  as  including  public  policy).  Whether  there  is 
any  precedent,  expert  opinion,  custom,  or  principle  from 
which  a  rule  can  be  drawn,  and  whether  a  rule  shall  be 
drawn  accordingly,  are  questions  which,  in  most  com- 
munities, are  left  to  the  courts  themselves;  and  yet  there 
are  probably  in  every  community  limits  within  or  beyond 
which  courts  may,  or,  on  the  other  hand,  cannot,  seek  for 
rules  from  the  sources  mentioned,  although  the  limits  are 
not  precisely  denned.  Take,  for  instance,  a  Country  where 
the  English  Common  Law  has  prevailed.  If  a  court  in 
such  a  country  should,  in  matters  not  governed  by  statute, 
absolutely  refuse  to  follow  any  judicial  precedents,  it  is 
not  likely  that  the  rulers  of  the  country  would  recognize 
the  doctrine  of  that  court  as  Law;  or,  if  a  court  should 
frame  a  rule  based  upon  the  principle  that  infanticide  was 
not  immoral,  that  rule  would  not  be  the  Law. 
statutes  as  Though  the  commands  by  the  rulers  of  a  community 
of  Law  as  to  the  limits  within  which  these  last  four  classes  of 
sources  are  to  be  sought  by  the  courts  are  indefinite, 
while  the  command  that  legislative  acts  must  be  followed 
by  the  courts  is  precise  and  peremptory,  the  fact  is  that 
thi'a  latter  rule,  in  its  working,  is  almost  as  indefinite 
as  those  which  are  imposed  on  the  courts  with  reference 
to  the  other  sources;  for,  after  all,  it  is  only  words  that 


THE  COURTS  125 

the  legislature  utters;  it  is  for  the  courts  to  say  what 
those  words  mean;  that  is,  it  is  for  them  to  interpret 
legislative  acts;  undoubtedly  there  are  limits  upon  their 
power  of  interpretation,  but  these  limits  are  almost  as 
undefined  as  those  which  govern  them  in  their  dealing 
with  the  other  sources. 

And  this  is  the  reason  why  legislative  acts,  statutes, 
are  to  be  dealt  with  as  sources  of  Law,  and  not  as  part 
of  the  Law  itself,  why  they  are  to  be  coordinated  with 
the  other  sources  which  I  iave  mentioned.  It  has  been 
sometimes  said  that  the  Law  is  composed  of  two  parts, — 
legislative  law  and  judge-made  law,  but,  in  truth,  all 
the  Law  is  judge-made  law.  The  shape  in  which  a  statute 
is  imposed  on  the  community  as  a  guide  for  conduct  is 
that  statute  as  interpreted  by  the  courts.  The  courts  put 
life  into  the  dead  words  of  the  statute.  To  quote  again 
from  Bishop  Hoadly,  a  sentence  which  I  have  before 
given :  "Nay,  whoever  hath  an  absolute  authority  to  in- 
terpret any  written  or  spoken  laws,  it  is  he  who  is  truly 
the  Law-giver  to  all  intents  and  purposes,  and  not  the 
person  who  first  wrote  or  spoke  them."  1  I  will  return 
to  this  later. 

1  Benjamin  Hoadly,  Bishop  of  Bangor.  Sermon  preached  before 
the  King,  1717,  p.  12. 


CHAPTER  VI 

LAW   OF    NATIONS 

Relation          IT  is  possible,  perhaps  probable,  that  men  have  lived 

between  *  '  .r  '    . 

nations  •  together  in  certain  modes  and  fashions,  have,  in  other 
words,  lived  in  society,  and  yet  may  not  have  formed  an 
organized  body.  But  the  units  of  such  unorganized  bodies 
may  be  themselves  organisms,  and  this  has  in  all  prob- 
ability been  generally  the  case.  A  horde  of  savages  who 
are  in  the  habit  of  wandering  about  together,  without 
king  or  judge,  may  be  composed  of  true  organisms,  fami- 
lies, each  with  its  ruler  (alike  legislator  and  judge)  and 
Law.  The  horde  is  made  up  of  the  family  units,  and 
not  of  the  individual  human  beings  who  make  up  the 
family. 

The  consideration  of  the  relations  between  the  units 
of  an  unorganized  collection  of  units  seems  to  be  a  dis- 
cussion remote  from  modern  life,  but,  in  truth,  such  rela- 
tions not  only  exist  to-day,  but  they  are  some  of  the  most 
important  factors  in  the  life  of  the  world.  Such  rela- 
tions obtain  between  modern  civilized  nations.  Each 
nation  is  an  organized  unit,  but  taken  together,  they  do 
not  form  an  organized  body.  The  rules  governing  the 
relations  of  such  nations  between  themselves  constitute 
what  is  called  the  Law  of  Nations,  or  International  Law. 
Is  this  really  Law  ? 

126 


LAW  OF  NATIONS  227 

There  are  two  matters  which  must  be  distinguished,  -inter- 
Fvrst.  On  no  subject  of  human  interest,  except  theology,  Law" 
ha?  there  been  so  much  loose  writing  and  nebulous  specu- 
lation as  on  International  Law.  In  many  parts  of  the 
vast  field  which  it  covers,  no  questions  have  been  posi- 
tively decided  or,  at  any  rate,  judicially  decided;  one 
class,  however,  and  a  very  important  class,  of  questions 
has  frequently  come  before  courts  for  determination ;  that 
is,  questions  arising  from  the  capture  of  neutral  vessels  by 
belligerents  on  the  high  seas.  When  a  neutral  ship  is  cap- 
tured by  a  belligerent  cruiser,  on  the  alleged  ground,  for 
instance,  that  it  is  carrying  goods  belonging  to  a  subject 
of  the  other  belligerent  nation,  or  is  carrying  contraband 
goods,  or  is  attempting  to  break  a  blockade,  it  is  carried 
into  a  port  of  the  belligerent,  and  is  there  made  the  sub- 
ject of  a  suit  by  the  captors  in  the  Admiralty.  If  the 
Court  of  Admiralty  finds  that  there  has  been  just  cause  of 
capture,  the  vessel  is  condemned ;  if  there  has  been  no  just 
cause  of  capture,  the  vessel  is  released. 

!N^ow  here  the  judge  of  the  Admiralty  Court  is  not 
acting  as  an  organ  of  the  nations  generally,  but  as  an 
organ  of  the  particular  belligerent  State.  The  rules  that 
he  follows  in  determining  the  validity  of  a  capture  are  the 
Law  of  that  particular  State,  and  he  applies  them  because 
they  are  the  Law  of  that  particular  State.  The  sources 
of  that  Law  may  be  the  customs  which  prevail  among 
civilized  nations,  but  he  refers  to  these,  not  because  such 
nations  have  commanded  him  so  to  do,  but  because  he  has 
been  authorized  so  to  do  by  the  State  of  which  he  is  the 
judge.  If  his  State  should  pass  a  statute  contrary  to  the 
general  customs  of  civilized  nations,  the  judge  would  be 
bound  to  follow  it.  The  enactment  of  the  statute  may 


128          THE  NATURE  AND  SOURCES  OF  THE  LAW 

give  rise  to  complaint  on  the  part  of  neutral  states,  or 
may  even  be  a  casus  belli,  but  the  judge  will  follow  the 
statute. 

The  relations  between  nations  come  in  question  before 
the  courts  of  a  State  most  frequently  in  cases  of  captures 
on  the  high  seas,  but  other  cases  sometimes  present  them- 
selves. For  instance,  the  automobile  of  an  ambassador 
runs  over  a  man  and  kills  him.  The  chauffeur  is  indicted 
for  manslaughter.  Can  he  be  tried  and  convicted  ?  This 
is  a  question  which  the  courts  of  the  country  where  the 
alleged  crime  has  been  committed  must  determine,  but 
the  rule  which  the  judges  follow  is  a  part  of  the  Law 
of  that  country,  not  of  the  country  of  the  ambassador,  nor 
of  the  nations  generally. 
"Private  Second.  The  rights  of  a  man  in  any  country,  arising 

Interna-  .  .  .  . 

tionaiLaw"  Irom  a  transaction  which  has  occurred  partly  in  one 
place  and  partly  in  another,  or  between  citizens  of  differ- 
ent States,  may  depend,  under  the  Law  of  that  country, 
upon  the  difference  of  locality  or  citizenship.  Suppose 
a  contract  is  made  for  the  carriage  of  goods.  The  offer  is 
made  by  a  letter  written  in  Paris  and  is  accepted  in 
Madrid;  the  goods  are  to  be  carried  from  Lisbon,  in  a 
Liverpool  ship,  to  Naples;  one  party  is  domiciled  in 
Stockholm  and  the  other  in  St.  Petersburg;  a  suit  is 
brought  on  the  contract  in  Berlin;  judgment  is  obtained 
there ;  and  an  action  is  brought  on  the  judgment  in  New 
York.  In  what  way  and  to  what  extent  the  Laws  of 
France,  Spain,  Portugal,  England,  Italy,  Sweden,  Kussia, 
Germany,  and  New  York,  respectively,  are  to  be  con- 
sidered, must  be  determined  by  the  New  York  court.  The 
rules  which  that  court  follows  in  considering  what  effect 
shall  be  given  to  these  several  laws  are  a  part  of  the 


LAW  OF  NATIONS  129 

Law  of  New  York,  not  of  any  or  all  of  the  other  countries. 
The  Laws  of  the  other  countries  are  simply  facts  which 
the  court  has  to  consider  like  other  facts.  They  are  no 
part  of  the  Law  of  New  York. 

As  it  is  obviously  desirable  that  the  effect  to  be  given 
to  differences  of  locality  or  citizenship  should  be  alike 
in  different  countries,  it  is  natural  and  proper  that  a 
court,  in  laying  down  rules,  that  is,  in  establishing  the 
Law  of  its  own  country  on  the  subject,  should  pay  regard 
to  the  Law  of  other  countries.  And  such  has  been  the 
practice  of  the  courts  of  most  civilized  nations.  There  is 
much  similarity  in  the  Law  of  different  countries  upon 
this  subject,  and,  therefore,  while  some  treatises  on  the 
subject  confine  themselves  to  the  Law  of  a  particular 
jurisdiction,  there  are  others  which  approach  the  topic 
from  the  point  of  view  of  Comparative  Jurisprudence, 
and  deal  with  the  doctrines  which  prevail  among  civilized 
nations  generally. 

Whichever  treatment  is  adopted,  the  best  title  for  the 
subject  is  that  which  Judge  Story  domesticated  in  Eng- 
lish, the  Conflict  of  Laws,  the  name  he  gave  to  the  book 
which  is  his  highest  claim  to  reputation  as  a  jurist.  A 
nomenclature  has,  however,  arisen  from  this  branch  of 
the  Law,  which,  though  favored  by  respectable  writers, 
is  unfortunate  and  pernicious, — Private  International 
Law.  I  do  not  always  agree  with  Mr.  Holland,  which 
makes  me  the  more  willing  to  borrow  the  excellent  re- 
marks in  his  treatise  on  Jurisprudence :  x  "  'Private  In- 
ternational Law'  is  wholly  indefensible.  Such  a  phrase 
would  mean,  in  accordance  with  that  use  of  the  word 
'international/  which,  besides  being  well  established  in 
»  (llth  ed.)  416. 


130          THE  NATURE  AND  SOURCES  OF  THE  LAW 

ordinary  language,  is  both  scientifically  convenient  and 
etymologically  correct,  'a  private  species  of  the  body  of 
rules  which  prevail  between  one  nation  and  another.' 
Nothing  of  the  sort  is,  however,  intended ;  and  the  unfor- 
tunate employment  of  the  phrase,  as  indicating  the  prin- 
ciples which  govern  the  choice  of  the  system  of  private  law 
applicable  to  a  given  class  of  facts,  has  led  to  endless  mis- 
conception of  the  true  nature  of  this  department  of  legal 
science.  It  has  also  made  it  necessary  to  lengthen  the 
description  of  International  Law,  properly  so  called,  by 
prefixing  to  it  the  otherwise  superfluous  epithet  'public.' 
It  is  most  important,  for  the  clear  understanding  of  the 
real  character  of  the  topic  which  for  the  last  forty  years 
has  been  misdescribed  as  'Private  International  Law/  that 
this  barbarous  compound  should  be  no  longer  employed." 
It  is  cause  for  satisfaction  that  Mr.  Dicey,  in  his  work 
which  is  likely  for  long  to  continue  a  standard  book,  has 
returned  to  the  title  "Conflict  of  Laws." 
.\s  inter-  Having  cleared  the  ground,  we  come  back  to  the  ques- 

national  °  07 

Law  really  tion:  Is  International  Law,  so  called,  really  Law  from 
the  point  of  view  of  independent  nations  ?  Austin  denied 
that  International  Law  had  the  qualities  essential  to  Law, 
and,  though  this  denial  has  been  much  carped  at,  it  is 
hard  to  make  out  a  case  against  it  on  any  sound  definition 
of  Law.  As  we  have  seen,  the  rules  of  International 
Law,  as  they  are  laid  down  by  the  judges  of  a  particular 
State,  are  the  Law  of  that  State;  but  the  question  here 
is:  Are  they  the  Law  of  the  collection  of  civilized 
nations  generally?  They  are  not  the  rules  laid  down  by 
international  courts,  for  there  are  no  international  courts ; 
they  are  not  the  commands  of  a  common  superior,  for 
independent  States  have  no  common  superior;  they  are 


LAW  OF  NATIONS  131 

not  put  in  execution  by  joint  force,  for  the  civilized 
nations  do  not  put  forth  their  force  jointly  to  carry  them 
into  effect.  The  sanction  which  makes  them  operative  as 
between  nations  is  not  a  physical  sanction ;  it  is  the  sanc- 
tion arising  from  the  opinion  of  civilized  nations  that 
the  rules  are  right,  and  that  civilized  nations  are  morally 
bound  to  obey  them.  They  are,  as  Austin  says,  precepts 
of  positive  morality.1 

On  the  term  "International  Law,"  Mr.  Brown,  in  his  Law  in 
valuable  book  on  the  Austinian  Theory  of  Law  2  has  some 
interesting,  and  perhaps  prophetic,  remarks:  "As  a 
matter  of  fact,  the  term  International  Law  is  at  present 
too  generally  adopted  to  admit  of  questioning  its  pro- 
priety. But  apart  from  this,  the  severest  accusation  that 
can  be  urged  against  the  term  is  simply  that  it  is  a  trifle 
previous.  Just  as  in  the  history  of  particular  societies 
there  are  periods  when  the  differentiation  between  law 
and  morality  is  in  the  process  of  becoming  rather  than 
actually  realized — periods  when  a  something  which  is  to 
become  positive  law  is  being  slowly  differentiated  from 
positive  morality — so  in  relation  to  the  society  of  nations 
to-day  there  is  a  body  of  rules  in  which  a  distinction 
is  being  established  and  developed  between  rules  which 
must  be  obeyed,  if  certain  penalties  are  not  to  be  incurred, 
and  rules  which  are  merely  the  expression  of  international 
comity  and  good-will.  Rules  of  the  former  class  .  .  .  are 
law  in  becoming — law  struggling  for  existence,  struggling 
to  make  itself  good  in  contradistinction  from  international 
morality,  and,  like  the  customary  law  of  undeveloped 
societies,  entitled  to  be  called  law  in  virtue  of  their  like- 

»1  Jur.   (4th  ed.)    187;  2  id.  593-594. 
1  §  157. 


132          THE  NATURE  AND  SOURCES  OF  THE  LAW 

ness  to  law  strictly  so  called — the  Positive  Law,  which 
is  the  subject-matter  of  Jurisprudence."  1 

Since  this  was  written,  the  International  Conference 
has  met;  the  establishment  of  an  International  Court  of 
Arbitration  has  been  discussed,  and  it  seems  not  unlikely 
that  it  may  be  set  up.  When  that  is  done,  the  nations 
which  unite  to  establish  it  wil]  become  an  organized  body, 
which  will  have  the  court  as  an  organ.  The  court  will 
lay  down  and  follow  general  rules.  If  the  nations  who 
have  united  to  establish  the  court  unite  to  declare  that 
they  will  join  in  carrying  out  its  decrees  by  force,  if 
necessary,  then  the  rules  will  become  Law  in  the  strictest 
sense,  and  each  of  the  nations  parties  to  the  establishment 
of  the  court  will  have  legal  rights  and  legal  duties.2 

1  See  also  article  by  Roland  Gray,  32  Harvard  Law  Rev.  825. 
'The    author    is    speaking    in    1908.     The    establishment    of    the 
League  of  Nations  is  a  further  step  in  the  direction  indicated. 


CHAPTER  VII 

JUBISPBUDENCE 

JUBISPBUDENCE  is  the  science  of  Law,  the  statement 
and  systematic  arrangement  of  the  rules  followed  by  the 
courts  and  of  the  principles  involved  in  those  rules. 
There  are  three  kinds  of  Jurisprudence :  first,  Particular 
Jurisprudence,  or  the  science  of  the  Law  of  a  particular 
community;  second,  Comparative  Jurisprudence,  or  the 
comparison  of  the  Law  of  two  or  more  communities ;  third, 
General  Jurisprudence,  or  the  comparison  of  all  the  legal 
systems  of  the  world. 

Austin  says  that  the  appropriate  subject  of  Juris-  Particular 
prudence  is  positive  Law;  that,  as  limited  to  any  one  prudence 
system,  it  is  particular  or  national;  that  many  principles 
of  Law  are  common  to  all  systems;  and  that  the  prin- 
ciples common  to  maturer  systems  are  the  subject  of 
General  (or  Comparative)  Jurisprudence,  or  of  the  phi- 
losophy of  positive  Law.1  Austin,  it  will  be  thus  seen, 
speaks  of  Particular  Jurisprudence  as  the  science  of  the 
legal  system  of  a  particular  country.  Professor  Holland 
objects  to  the  term  "Particular  Jurisprudence" ;  he  says 
it  can  only  mean  an  acquaintance  with  the  Law  of  a 
particular  people.2  It  means  that,  but  it  means  more;  it 
means  a  scientific  knowledge  of  the  Law  of  a  particular 

*2  Jur.   (4th  ed.)    1107. 
»Jur.   (llth  ed.)    10. 

133 


134         THE  NATURE  AND  SOURCES  OF  THE  LAW 

people.  It  is  desirable  to  have  a  special  term  to  express 
this,  and  this  is  what  "Particular  Jurisprudence,"  as  or- 
dinarily, and  I  think  rightly,  used,  does  mean. 

Indeed,  there  seems  no  objection  to  the  usage  which 
Professor  Holland  mentions  as  springing  up  in  France, 
of  referring  to  the  "Jurisprudence"  of  a  particular 
Court  in  the  sense  of  "La  maniere  dont  un  tribunal  juge 
habituellement  telle  ou  telle  question."  1  Nor  is  it  nec- 
essary that  the  courts,  whose  rules  form  the  subject  of 
Jurisprudence,  should  be  those  of  a  political  community. 
It  is  right  to  speak  of  the  Jurisprudence  of  the  Roman 
Catholic  Church;  and  if  the  Worshipful  Company  of 
Bellows  Menders  has  courts  with  judicial  functions,  it  may 
have  a  Jurisprudence. 

Jurisprudence,  it  is  true,  is  often  used  in  a  sense  which 
it  is  impossible  to  defend.  There  are  certain  treatises, 
many  of  considerable  merit,  dealing  with  those  facts, 
likely  to  arise  in  litigation,  with  which  the  members  of 
certain  professions  or  trades  are  or  ought  to  be  familiar; 
such  books  are  often  called  treatises  on  Jurisprudence. 
Thus,  works  on  Medical  Jurisprudence  are  vade  mecums 
for  lawyers  and  doctors,  containing  a  mass  of  useful  in- 
formation on  poisons,  parturition,  etc.,  but  without  any 
scientific  unity,  or  any  pretension  to  be  considered  "Law" 
at  all.  So  in  France  they  speak  of  "Veterinary  Juris- 
prudence," and  there  is  no  reason  why,  in  like  manner, 
we  should  not  have  "Builders'  Jurisprudence,"  or 
"Jockeys'  Jurisprudence." 

comparative     Comparative  Jurisprudence  has  for  its  object  the  sys- 
prudence      tematic  comparison  of  the  Law  of  two  or  more  countries 
or  organizations,  for  the  purpose  of  discovering  the  ele- 
*Jur.  (llth  ed.)  4. 


JURISPRUDENCE  135 

ments  of  agreement  and  difference.  There  are  many 
bodies  of  Law  of  which,  at  present  at  any  rate,  we  know 
little, — some  in  ancient  times,  as  the  Assyrian  or  Egyp- 
tian; others  of  to-day,  as  that  of  the  Chinese  or  Zulus; 
but  all  of  them  were  or  are  in  a  state  of  development 
so  different  from  that  of  the  systems  under  which  we 
live,  that  the  chief  gain  to  be  derived  from  considering 
them,  in  connection  with  the  Common  or  Civil  Law,  would 
be  rather  from  the  light  which  might  be  thrown  on  the 
history  of  the  past,  than  in  expectation  of  improvement 
or  change  in  the  future. 

But  though  there  may  be  little  practical  advantage  in 
the  pursuit  of  Comparative  Jurisprudence  beyond  the 
limits  of  the  Common  and  Civil  Law,  there  is  plenty  of 
material  within  those  limits.  The  Law  of  England,  of 
all  of  the  United  States  except  Louisiana,  and  of  many 
of  the  English  Colonies,  including  the  whole  continent 
of  Australia,  have  one  common  root,  yet  the  growths 
from  that  common  root  have  been  very  varied,  and  the 
comparison  of  those  growths  is  most  instructive.  So 
again,  the  Law  of  the  different  States  of  Continental 
Europe,  of  Scotland,  of  Louisiana,  of  South  America,  are 
based  on  the  Roman  Law,  but  so  diversified  by  natural 
development  and  by  codes  that  there  is  great  opportunity 
for  fruitful  comparison  of  the  systems  of  all  these  coun- 
tries with  each  other  and  with  those  of  communities 
where  the  English  Common  Law  has  formed  the  point  of 
departure. 

The  natural  meaning  of  General  Jurisprudence  would  General 
seem  to  be  a  comparison  of  all  (as  distinguished  from  prudence 
some)  of  the  legal  systems  of  the  world.     As  we  know 
nothing,  or  next  to  nothing,  of  the  Law  of  many  of  the 


136    THE  NATURE  AND  SOURCES  OF  THE  LAW 

nations  and  tribes  which,  exist,  or  have  existed  on  th* 
earth,  and  have  only  a  very  superficial  acquaintance  with 
the  Law  of  many  others,  it  is  impossible,  with  our  present 
materials,  to  construct  such  a  science  of  General  Juris- 
prudence, and  it  is  likely  long  to  continue  impossible. 

Another  meaning  sometimes  given  to  General  Juris* 
prudence  is  that  it  has,  for  its  object,  the  rules  of  Law 
which  are  common  to  all  legal  systems.  An  objection 
exists  also  to  the  practicability  of  the  science  of  General 
Jurisprudence  in  this  sense.  Under  the  first  definition 
the  product  of  the  science  would  be  extraordinarily 
bulky;  on  this  second  meaning,  its  product  would  be 
meagre  in  the  extreme.  The  list  of  rules  of  Law  received 
semper,  ubique  et  ab  omnibus  from  Kamschatka  to  Pata- 
gonia is  likely  to  be  a  short  one. 

supposed  General  Jurisprudence  has  sometimes  been  declared 
principles  to  be  the  science  of  the  necessary  principles  of  the  Law 
in  all  countries.  Such  a  treatment  of  the  subject  is  not 
likely  to  meet  with  much  favor  at  the  present  day.  There 
is  no  need  of  denying  that  the  rules  which  courts  have 
laid  down  have  been  compelled  by  a  sequence  of  events 
as  fixed  as  those  which  prevail  in  the  material  forces  of 
nature.  Such  may  have  been  the  case.  We  know  that 
language,  which  seems  to  be  the  sport  of  individual 
caprice,  is  in  truth  subject  to  rigorous  rules  which  have 
operated  controllingly  without  the  conscious  knowledge 
of  those  who  have  in  fact  obeyed  them.  But  if  this  be 
so,  we  as  yet  know  little  of  the  general  forces  of  human 
nature  which  have  compelled  the  Law  to  develop  as  it  has. 
Much  has  of  late  been  done  to  show  how  particular  insti- 
tutes, like  the  jury,  or  particular  doctrines,  such  as  that 
of  possession,  have  grown  up  in  this  or  that  country,  but 


JURISPRUDENCE  137 

little,  if  anything,  to  show  what  universal  forces  of  human 
nature  have  caused  the  Jurisprudence  of  the  globe  to 
be  what  it  is;  or,  in  other  words,  Jurisprudence,  as  a 
branch  of  anthropology,  is  yet  in  its  infancy.  A  priori 
theories  on  the  fundamental  laws  of  human  existence  have 
been  common  enough,  and  far  enough  away  from  any 
known  facts,  but  General  Jurisprudence,  as  a  science  based 
on  observation,  does  not  yet  exist. 

But,  further,  we  do  know  enough  to  render  it  extremely 
doubtful  whether  there  are  any  principles  of  Law  which 
are  so  ingrained  in  human  nature  as  to  be  immutable 
and  necessary.  The  possibility  of  General  Jurisprudence 
as  a  science  of  necessary  principles  rests  on  a  theory  of  the 
universe  which  has,  in  these  last  days,  been  badly  shaken, 
a  theory  which  supposes  a  permanence  in  social  relations 
the  existence  of  which  is  very  uncertain.  As  Mr.  Buck- 
land  well  says:1 

"The  fact  that  principles  of  law  change  Professor  Hol- 
land admits  by  calling  Jurisprudence  a  progressive  science. 
This  admission  is  somewhat  startling.  A  writer  on  the 
Jurisprudence  of  a  single  nation  might  make  it  readily 
enough.  But  what  is  likely  to  be  the  fate  of  a  principle 
found  in  the  law  of,  say,  ten  states  which  go  on  develop- 
ing on  different  lines?  The  probabilities  are  against  its 
continuance  as  a  general  principle.  And  the  notion  that 
some  other  general  principle  will  arise  to  take  its  place 
appears  to  be  rather  an  article  of  faith  than  a  proposition 
on  which  a  science  can  be  based." 

And,  as  Mr.  Buckland  goes  on  to  point  out,  the  gener- 
ality to  be  looked  for  in  such  legal  investigations  is  not  a 

1 6  Law  Quart.  Rev.  444. 


138          THE  NATURE  AND  SOURCES  OF  THE  LAW 

generality  of  institutions  and  principles  to  be  discovered 
fixed  in  the  legal  systems  of  all  times  and  all  countries, 
but  the  generality  of  laws  by  which  institutions  and 
principles  themselves  change.1 

If  we  are  to  employ  both  terms,  Comparative  Juris- 
prudence and  General  Jurisprudence,  with  different  mean- 
ings, it  would  seem  as  if  'the  latter  must  apply  to  the 
world.  Austin,  however,  uses  it  in  a  narrow  sense.  He 
says :  "I  mean  b.y  General  Jurisprudence  the  science  con- 
cerned with  the  exposition  of  the  principles,  notions,  and 
distinctions  which  are  common  to  systems  of  law;  under- 
standing by  systems  of  law  the  ampler  and  maturer  sys- 
tems." 2  But  all  the  ''ampler  and  maturer  systems"  of 
which  we  have  any  knowledge,  or  are  likely  to  have  any 
knowledge,  are  derived  either  from  the  Roman  Law  or 
the  English  Common  Law,  and  therefore  come  within  the 
limits,  as  ordinarily  defined,  of  Comparative  Jurispru- 
dence. It  may  be  said  that  there  is  no  great  harm  done 
by  calling  Comparative  Jurisprudence  "General,"  but  it 
has  the  evil  result  of  suggesting  the  universal,  and  even 
the  necessary,  character  of  certain  legal  propositions,  when 
the  fact  merely  is  that  they  have  been  accepted  as  true 
or  convenient  by  certain  jurists  in  Home  and  by  certain 
judges  in  England. 

1  "Man  in  abstracto,  as  assumed  by  philosophies  of  Law,  has  never 
actually  existed  at  any  point  in  time  or  space."     Wundt,  Ethics, 
p.  566.     Translation  by  Titchener  and  others,  vol.  3,  p.  160. 

"I  have  seen  in  my  life,  Spaniards,  Italians,  Russians,  etc.;  I 
even  know,  thanks  to  Montesquieu,  that  there  are  Persians:  but  as 
to  man,  I  declare  that  I  have  never  come  across  one  in  my  life;  if 
he  exists,  I  don't  know  it."  J.  de  Maistre,  Considerations  sur  la 
France,  (Euvres,  vol.  1  (ed.  1851),  Chap.  6,  p.  88.  See  also  preface 
by  Professor  Kocourek  to  Science  of  Legal  Method,  p.  I  (Modern 
Legal  Philosophy  Series),  and  article  by  Professor  Pound,  28  Har- 
vard Law  Rev.  343,  353,  note. 

2  2  Jur.   (4th  ed.)    1108. 


JURISPRUDENCE  139 

In   defining  the  limits   of   Jurisprudence,    it   is   im-  Deontoiog- 

3  f  ical  or 

portant  to  consider  how  far  a  deontological  element  should  Cement 
be  introduced  into  the  science.1  Austin  says  that  with 
the  goodness  or  the  badness  of  laws  General  Jurisprudence 
has  no  immediate  concern,  which  distinguishes  it  from 
the  Science  of  Legislation;  that  some  of  the  principles 
which  are  the  subjects  of  General  Jurisprudence  are  nec- 
essary; and  that  others,  though  not  necessary,  yet  "as 
they  rest  upon  grounds  of  utility  which  extend  through 
all  communities,  and  which  are  palpable  or  obvious  in 
all  refined  communities,  occur  very  generally  in  matured 
systems  of  law."  2 

The  Science  of  Legislation  and  Jurisprudence  are, 
then,  distinguished,  according  to  Austin,  by  the  circum- 
stance that  with  goodness  or  badness  of  laws  the  latter 
has  no  concern;  but  Austin  does  not  emphasize  the  dis- 
tinction with  the  savage  stress  which  he  sometimes 
employs.  "It  is  impossible,"  he  says,  "to  consider  Juris- 
prudence quite  apart  from  Legislation."  "If  the  causes 
of  laws  ...  be  not  assigned,  the  laws  themselves  are 
unintelligible."  "In  certain  cases  which  do  not  try  the 
passions  [the  teacher  of  Jurisprudence]  may,  with  advan- 
tage, offer  opinions  upon  merits  and  demerits."  3 

1One  way  of  approaching  the  Law  "starts  from  the  needs  of 
society,  and  considers  how  far  the  Law  is  adequate  or  inadequate 
to  those  needs.  As  it  deals  with  what  the  law  ought  to  be,  we 
may  designate  it  as  the  deontological  or  ethical."  Nature  and 
Sources  of  the  Law,  1st  ed.,  sec.  1.  Sociological  Jurisprudence 
appears  to  be  neither  more  nor  less  than  Deontological  Juris- 
prudence as  thus  denned. 

•   Jur.   (4th  ed.)   1109. 

8 2  Jur.  (4th  ed.)  1113,  1114.  It  must  be  borne  in  mind  that 
the  Science  of  Legislation,  according  to  Austin,  is  concerned  with 
the  Law  as  it  ought  to  be.  He  regards  all  changes  and  improve- 


140          THE  NATURE  AND  SOURCES  OF  THE  LAW 

Austin,  as  we  see,  admits  the  impossibility  of  consider- 
ing Jurisprudence,  as  he  defines  it,  by  itself,  and  any 
one  who  has  tried  to  do  so  will  agree  with  him.  Writers 
have  shrunk,  on  the  one  hand,  from  limiting  Juris- 
prudence to  a  mere  classified  digest  of  established  rules, 
and,  on  the  other  hand,  from  saying  that  Jurisprudence 
is  the  science  of  what  ought  to  be  the  Law  of  Utopia. 
The  existence  of  Law  as  a  fact  has  always  been  recog- 
nized, though  not  always  with  precision,  as  a  necessary 
element  in  the  subject-matter  of  Jurisprudence. 

There  are,  in  truth,  three  ways  of  considering  the 
Law;  that  is,  the  rules  applied  by  the  courts.  First,  we 
may  consider  only  the  rules  which  have  been  actually 
adopted.  This  excludes  the  discussion  of  those  cases 
which  do  not  fall  within  the  established  rules.  We  have 
only  to  determine  what  rules  have  actually  been  adopted. 
Or,  secondly,  we  may  consider  the  rules  which  have  been 
actually  adopted,  and  determine  what  those  rules  are, 
and  may  also  consider  what  rules  ought  to  be  adopted  in 
those  cases  which  do  not  come  within  the  established  rules. 
Or,  thirdly,  we  may  consider  what  the  Law  ought  to  be 
in  all  cases. 

This  last  method,  it  should  be  observed,  does  not  in- 
volve going  back  to  a  tabula  rasa.  Rules  based  on  statute 
and  precedent  may  have  become  so  bound  up  with  in- 
stitutions which  are  on  the  whole  beneficial,  that  it  may 
not  be  wise  to  interfere  with  them,  although  they  would 
never  be  established  at  the  present  day  in  a  new  commu- 

ments  in  the  Law  as  made  by  legislation,  direct  or  indirect.  It  is 
only  the  changes  wrought  by  statutes  which  are  commonly  included 
in  legislation,  but  Austin  makes  it  cover  changes  and  additions  in 
the  Law,  however  wrought. 


JURISPRUDENCE  141 

nity.  For  instance,  that  a  jury  is  to  consist  of  twelve 
persons,  that  it  must  be  unanimous,  that  its  verdict  of 
acquittal  in  a  criminal  case  cannot  be  set  aside, — all  these 
might  not  be  adopted  in  a  brand  new  code  for  a  brand  new 
State,  and  yet  it  might  not  be  wise  to  alter  them  in  a 
country  where  they  had  long  prevailed. 

But  though  this  be  true  in  the  third  way  of  dealing 
with  the  Law,  yet,  under  this  method,  the  existence  of 
present  rules  of  Law  is  only  one  of  the  facts  in  the  con- 
dition of  a  community,  like  their  language  or  their  usual 
occupations,  which  are  to  be  taken  into  account  in  deter- 
mining what  is  best  for  them.  What  the  Law  of  that 
community  ought  to  be,  under  all  the  circumstances,  is  the 
sole  purpose  of  the  inquirer.  This  third  method  of  con- 
sideration must,  therefore,  be  deemed  appropriate  to  the 
Science  of  Legislation,  but  foreign  to  the  Science  of  Juris- 
prudence.1 

The  first  mode  is  undoubtedly  appropriate  to  Juris-  Ethical 
prudence.  Is  the  second  ?  I  conceive  that  it  is.  In  older  necessary 
days,  when  the  rules  composing  the  Law  were  thought 
of,  at  any  rate  talked  about,  as  deducible,  with  unerring 
certainty,  from  unquestioned  principles,  it  was  custom- 
ary to  speak  of  Jurisprudence  as  dealing  only  with  rules 
already  established,  for  those  rules  were  feigned  to  hold 
within  themselves  all  possible  doctrines  of  the  Law;  but 
now  that  we  know  more  of  the  mode  of  growth  of  the  Law, 
it  is  not  the  immutability  of  legal  principles  which  at- 
tracts the  mind,  it  is  the  prospect  of  their  future  develop- 
ment. 

*By  many  recent  writers,  especially  those  of  the  sociological 
school,  the  Science  of  Legislation  is  included  in  Jurisprudence,  and 
the  third  method  above  stated  is  therefore  adopted. 


142         THE  NATURE  AND  SOURCES  OF  THE  LAW 

To  illustrate :  Whether  a  donatio  causa  mortis  l  ought 
to  be  good  without  delivery,  is  not  a  topic  for  English 
Jurisprudence,  because  it  is  settled  that  delivery  is  neces- 
sary. Neither  is  the  question  whether  a  devise  to  A.  for 
life,  remainder  to  his  heirs,  ought  to  give  A.  a  fee,  for  the 
rule  in  Shelley's  Case2  settled  that  it  does.  On  the 
other  hand,  whether  the  certification  of  a  check  by  the 
bank  on  whom  it  is  drawn,  after  delivery,  ought  to  dis- 
charge the  maker,  was  a  topic  for  the  Jurisprudence  of 
Massachusetts  before  the  decision  of  the  Supreme  Judicial 
Court  of  that  State  that  it  did.3  Now  the  corresponding 
topic  of  Massachusetts  Jurisprudence  is  that  such  certifica- 
tion does  discharge  the  maker.  To  consider  whether  now 
in  Massachusetts  such  certification  ought  to  work  a  dis- 
charge, is  a  question  for  the  Science  of  Legislation,  not 
for  the  Jurisprudence  of  Massachusetts. 

And  yet,  even  in  Jurisprudence,  it  may  sometimes  be 
necessary  to  consider  the  beneficial  or  injurious  character 
of  an  established  doctrine  of  Law,  in  order  to  determine 
whether  it  should  be  extended.  For  instance,  in  most 
of  the  United  States  it  is  the  Law  that  a  deed  with 
covenant  of  warranty  passes  the  legal  title  to  land  after- 
wards acquired.  The  wisdom  of  establishing  such  Law 
has  been  much  doubted,  but  the  Law  itself  is  well  settled. 
But  on  a  question  whether  the  doctrine  should  be  ex- 
tended to  the  case  of  a  deed  which  in  terms  disclosed  the 
want  of  title, — where,  that  is,  the  warranty  was  in  effect 
only  a  promise  of  indemnity, — it  would  seem  that  the 

*A  gift  to  take  effect  on  the  death  of  the  giver. 

al  Co.  93. 

*  Mimot  v.  RuS9,  156  Mass.  458. 


JURISPRUDENCE  143 

consideration  of  the  beneficial  or  injurious  character  of 
the  rule  would  be  a  matter  for  Jurisprudence. 

In   Comparative  Jurisprudence  there  are  first  to  be  Ethical 

,  T  element 

considered  separately  two  or  more  systems  of  Law,  and  incompar- 

»  1/7  atlve  Jur.vs- 

then  the  results  are  to  be  compared  and  their  resemblances  prudence 
and  differences  noted;  and  further,  when  there  is  agree- 
ment on  some  points  and  difference  on  others,  it  seems 
within  the  scope  of  Comparative  Jurisprudence  to  consider 
which  system,  taking  into  account  the  points  agreed  upon, 
holds  the  sounder  view  on  those  in  which  they  differ. 
For  instance,  suppose  that  in  two  States  the  Law  concern- 
ing bills  and  notes  is  on  most  points  the  same,  but  that  in 
one  of  them  a  man  who  takes  a  promissory  note  in  pay- 
ment of  a  preexisting  debt  is  deemed  a  purchaser  for 
value,  and  that  in  the  other  he  is  not;  which  State,  on 
this  particular  point,  has  reached  the  better  conclusion,  is 
a  question  falling  within  the  scope  of  their  Comparative 
Jurisprudence.  But  to  consider  what  ought  to  be  the  Law 
in  a  matter  upon  which,  in  both  of  the  States,  the  Law 
is  definitely  settled  the  same  way,  falls  outside  of  their 
Comparative  Jurisprudence. 

In  General  Jurisprudence,  the  only  deontological  ques- 
tion excluded  from  consideration  is  what  ought  to  be 
the  Law  on  those  points  where  the  Law  is  in  fact  uniform 
in  all  human  communities.  Except  in  this  area,  which 
is  probably  not  large,  the  element  of  what  ought  to  be 
the  Law  is  properly  a  subject  of  General  Jurisprudence, 
and  General  Jurisprudence  swallows  up,  or,  if  one  prefers 
to  say  so,  is  swallowed  up  by  the  Science  of  Legislation. 

If  I  am  right  in  thinking  that  Jurisprudence,  within 
the  limits  indicated,  comprises  the  consideration  of  Law 
as  it  ought  to  be,  then,  since  the  doctrines  of  morality  are 


144 


THE  NATURE  AND  SOURCES  OF  THE  LAW 


Jurispru- 
dence as  a 
purely 
formal 
science 


largely,  as  we  shall  see  more  clearly  later,  a  most  im- 
portant source  from  which  the  judges  draw  and  ought  to 
draw  the  rules  which  make  the  Law,  the  true  theory  of 
morals  comes  properly  within  the  purview  of  Jurispru- 
dence; and  I  cannot,  therefore,  blame  Austin,  as  some  do, 
for  dealing  with  the  foundations  of  morality  in  his  treatise. 
From  his  own  point  of  view,  indeed,  it  seems  difficult  to 
justify  his  procedure.  He  endeavors  to  confine  Juris- 
prudence to  the  Law  that  has  been  actually  settled,  and  to 
eliminate,  as  far  as  possible,  the  deontological  element, 
and  therefore  the  discussion  of  the  foundations  of  morality 
seems  out  of  place  in  this  book.  But  on  the  definition  of 
"Jurisprudence,"  which  appears  the  sounder  one,  the 
true  grounds  of  morality  seem  a  proper  subject  of  con- 
templation. 

There  are  three  or  four  narrower  definitions  of  Juris- 
prudence which  should  not  be  passed  over.  Professor 
Holland  describes  Jurisprudence  as  a  formal  analytical 
science  as  opposed  to  a  material  one:  "That  is  to  say, 
that  it  deals  rather  with  the  various  relations  which  are 
regulated  by  legal  rules  than  with  the  rules  themselves 
which  regulate  those  relations";  and  he  likens  it  to  the 
science  of  Grammar;  "Whether  the  possessive  case  of  a 
noun  substantive  is  expressed  by  a  specific  modification 
of  its  termination,  or  by  prefixing  to  it  a  specific  preposi- 
tion, is  a  question  of  the  matter  of  language;  but  that 
the  possessive  idea,  however  variously  expressed,  yet  finds 
some  expression  or  other  in  every  family  of  human 
speech,  is  a  proposition  which  relates  to  linguistic  form." 
And  he  goes  on  to  say  that  "Comparative  Law  collects 
and  tabulates  the  legal  institutions  of  various  countries," 


JURISPRUDENCE  145 

and  that  Jurisprudence  sets  forth  "an  orderly  view  of  the 
ideas  and  methods  which  have  been  variously  realized  in 
actual  systems.  It  is,  for  instance,  the  office  of  Compara- 
tive Law  to  ascertain  what  have  been  at  different  times 
and  places  the  periods  of  prescription.  ...  It  is  for 
Jurisprudence  to  elucidate  the  meaning  of  prescription,  in 
its  relation  to  ownership  and  to  actions.  ...  A  system 
of  Jurisprudence  might  conceivably  be  constructed  from 
the  observation  of  one  system  of  law  only,  at  one  epoch 
of  its  growth.  .  .  .  Jurisprudence  is  therefore  not  the 
material  science  of  those  portions  of  the  law  which  vari- 
ous nations  have  in  common,  but  the  formal  science  of 
those  relations  of  mankind  which  are  generally  recognized 
as  having  legal  consequences."  * 

This  sounds  plausible,  but  a  little  reflection  shows  that 
it  is  true  of  Law,  as  it  is  of  Logic,  that  "the  notions  of 
form  and  formal  relations  are  by  no  means  so  simple  and 
free  from  ambiguity  that  by  their  aid  one  can  at  once 
solve  a  complicated  problem  of  philosophic  arrange- 
ment." 2  Jurisprudence  is,  in  truth,  no  more  a  formal 
science  than  Physiology.  As  bones  and  muscles  and 
nerves  are  the  subject-matter  of  Physiology,  so  the  acts 
and  forbearances  of  men  and  the  events  which  happen 
to  them  are  the  subject-matter  of  Jurisprudence,  and 
Physiology  could  as  well  dispense  with  the  former  as 
Jurisprudence  with  the  latter.  As  Professor  Platt  has 
truly  said:  "Without  resorting  to  acts  and  forbearances 
and  to  the  states  of  fact  under  which  they  are  commanded, 
Law  cannot  be  differentiated  at  all;  not  so  much  as  the 
bare  framework  of  its  chief  departments  can  be  erected. 

1  Holland,  Jur.  (llth  *d.)  6-9. 

•Prof.  Adamson,  on   "Logic,"   Encyc.   Brit.    (9th  ed.)    p.   780. 


146         THE  NATURE  AND  SOURCES  OF  THE  LAW 

An  attempt  to  construct  quite  apart  from  all  the  matter 
of  Law  even  the  most  general  conception  of  ownership  or 
contract  would  be  like  trying  to  make  bricks  not  merely 
without  straw  but  without  clay  as  well."  1 

Let  us  take,  for  instance,  the  question  of  prescription,2 
which  is  one  of  the  instances  given  by  Professor  Hol- 
land. Under  the  head  of  Prescription,  the  following 
matters  have  arisen  and  been  determined  differently  in 
different  countries.  1.  Does  prescription  bar  the  remedy 
or  actually  pass  title?  And  is  the  rule  different  with 
regard  to  ownership  of  land  from  what  it  is  in  the  case 
of  rights  of  way?  2.  Must  prescription  begin  with  a 
possession  taken  in  good  faith?  3.  Can  successive  in- 
dependent adverse  holders  join  their  times  to  produce  the 
period  required  for  prescription?  4.  Can  constructive 
possession  be  given  by  color  of  title?  5.  Can  successive 
disabilities  be  joined?  6.  After  the  period  of  prescrip- 
tion has  begun  to  run,  can  it  be  suspended  ?  7.  Does  pre- 
scription run  without  the  knowledge  of  the  person  against 
whom  it  runs?  Are  these  and  other  like  questions  fit 
topics  for  Jurisprudence?  If  they  are,  then  the  whole 
subject  of  prescription,  except  the  arbitrary  determination 
of  the  periods  of  prescription,  is  within  the  domain  of 
that  science;  if  not,  then  Jurisprudence  is  confined  to 
a  jejune  list  of  propositions,  and  indeed,  it  might  be  said 
that  Jurisprudence  teaches  that  property  may  be  trans- 
ferred from  one  person  to  another  without  a  conveyance, 
and  that  Comparative  Law  furnishes  us  the  cases  of  pre- 
scription in  which  this  principle  is  applied. 

J24  Am.  Law  Rev.  605-606. 

*I.e.  the  acquisition  of  property  by  lapse  of  time. 


JURISPRUDENCE  147 

The  real  relation  of  Jurisprudence  to  Law  depends  not  Essence  of 
upon  what  Law  is  treated,  but  how  Law  is  treated.     A  prudence  is 

,.      .  ,  ,  method 

treatise  on  Jurisprudence  may  go  into  the  minutest  par- 
ticulars, or  be  confined  to  the  most  general  doctrines,  and 
in  either  case  deserve  its  name;  what  is  essential  to  it 
is  that  it  should  be  an  orderly,  scientific  treatise  in  which 
the  subjects  are  duly  classified  and  subordinated.  "Juris- 
prudence is  the  most  general  word  we  have  to  denote  the 
scientific  treatment  of  Law,  and  there  is  no  reason  to 
restrict  its  natural  meaning."  It  is  noticeable  that,  as 
Professor  Platt  remarks,  Professor  Holland  is  so  far  in 
practice  from  excluding  the  material  of  Law  from  his 
book  on  Jurisprudence  that  he  has  justly  laid  himself 
open  to  the  charge  of  dealing  with  the  special  subject- 
matter  of  a  particular  system  as  if  it  were  universal. 

Mr.  Lightwood,  in  his  valuable  treatise  on  Positive 
Law,1  takes  a  somewhat  different  view  of  Jurisprudence. 
He  says:  "As  long  as  we  take  our  distinctions  solely 
from  English  law  and  explain  them  merely  by  history, 
we  do  not  enter  upon  science,  for  the  distinctions  and 
principles  may  be  merely  accidental,  and  the  historical 
reasons  may  have  no  reference  to  utility.  If,  however,  we 
were  to  show  that  these  distinctions  and  principles  have 
a  real  basis  in  the  wants  of  the  people,  we  should  then 
treat  the  law  scientifically,  and  we  should  work  out  the 
Particular  Jurisprudence  of  the  country.  This  at  least 
is  the  only  natural  meaning  I  can  give  to  this  phrase." 

But  thus  to  reject  from  the  domain  of  Jurisprudence 
all  of  the  Law  which  a  writer  does  not  believe  to  "have 
a  real  basis  in  the  wants  of  the  people"  is  hardly  ad- 

1  p.  10. 


148 


THE  NATURE  AND  SOURCES  OF  THE  LAW 


missible.  It  is  true,  as  has  been  said,  that  Jurisprudence 
may  extend  to  the  consideration  of  the  Law  as  it  ought 
to  be,  so  far  as  is  consistent  with  the  Law  already  estab- 
lished, but  it  also  includes  an  orderly  exposition  of  the 
Law  that  is  established,  and  when  we  omit  this  latter 
element,  we  leave  the  domain  of  Particular  Jurisprudence 
for  that  of  the  Science  of  Legislation. 

Mr.  Lightwood  then  proceeds  to  General  Jurisprudence. 
He  says  that  the  system  of  one  country  is  to  be  com- 
pared with  those  of  other  countries;  that  certain  com- 
mon distinctions  and  principles  are  detected;  that  these 
"are  assumed  to  have  a  more  permanent  value  than 
others";  that,  at  last,  it  will  be  discovered  that  these 
"only  differ  from  the  rest  in  that  they  clearly  follow 
the  principle  of  utility" ;  and  that  "henceforth,  then,  we 
can  provisionally  guess  that  this  principle  is  satisfied  by 
comparing  different  systems;  but  when  this  method  fails, 
we  can  apply  the  principle  directly."  1 

But  these  assumptions  and  guesses  seem  unjustifiable. 
Are  those  elements  which  are  common,  say,  to  the  Eng- 
lish and  Roman  Law,  of  more  permanent  value  than 
others  ?  Compare  the  rule  forbidding  conditions  restrain- 
ing marriage  with  the  rule  of  authorizing  the  disinherit- 
ance of  children.  In  the  Common  and  Roman  Law  alike, 
general  conditions  in  restraint  of  marriage  are  void,  but 
on  the  disinheritance  of  children  the  systems  differ. 
Surely  we  cannot  "assume"  that  the  rules  avoiding  con- 
ditions in  restraint  of  marriage  "have  a  more  permanent 
value"  than  the  rules  relating  to  the  power  of  disinher- 
itance. Nor  do  we  "at  last"  discover  that  the  former 

1  Lightwood,  pp.   15,   16. 


JURISPRUDENCE  149 

rules  differ  from  the  latter  "in  that  they  clearly  follow 
the  principle  of  utility." 

And  it  is  not  only  in  reading  Mr.  Lightwood's  book 
that  one  should  bear  in  mind  that  rules  of  Law  shown 
to  be  common  to  the  Roman  and  English  systems  cannot 
necessarily  be  accepted  as  what  the  Law  ought  to  be.  It 
is  undoubtedly  in  favor  of  a  legal  principle  that  it  has 
been  received  by  two  able  men  so  unlike  as  Ulpian  and 
Lord  Coke,  but  yet  it  is  not  only  possible,  but  extremely 
likely,  that  on  many  points  both  Ulpian  and  Lord  Coke 
were  ignorant  of  what  was  best  for  a  community.  Is 
it  so  clear,  for  instance,  that  the  noxalis  actio  1  of  the 
Roman  Law,  and  the  liability  of  a  master  for  the  acts  of 
his  servant  in  the  English  Common  Law,  are  founded  on 
a  wise  policy?  Or  take  the  question  alluded  to  above 
on  conditions  in  restraint  of  marriage.  Many  of  the 
wisest  and  best  men  would  be  only  too  glad  of  the  aid 
of  the  Law  in  restraining  marriages.  The  question  of 
population  is  looked  at  from  a  totally  different  point  of 
view  from  what  it  was  when  the  foundations  of  the 
Roman  and  the  Common  Law  were  laid. 

The  notions  of  personal  righteousness  may  not  have 
changed  much,  but  certainly  at  the  present  day  one  would 
not  wish  to  borrow  one's  ideas  of  the  best  mode  in  which 
society  should  interfere  with  its  members,  either  from 
the  "classical  jurists"  or  the  "sages  of  the  Common  Law," 
and  would  hardly  feel  safe  in  concluding  that,  because  both 
those  two  highly  respectable  bodies  thought  alike  on  a 
question  of  social  morality  or  political  economy,  they  must 
be  right;  and  yet  this  feeling  that  doctrines  common  to 

1  "Action  for  injury."  This  gave  the  same  sort  of  right  against 
the  master  as  exists  in  English  Law. 


150          THE  NATURE  AND  SOURCES  OF  THE  LAW 

the  Roman  and  English  Law  must  be  right  and  funda- 
mental, has  led  writers  to  confound  Comparative  with 
General  Jurisprudence,  and  to  feel  justified  in  laying 
down  rules  as  universal  and,  indeed,  necessary,  because 
they  found  them  both  in  the  Digest  and  in  the  notes  to 
Williams's  Saunders. 

Mr.  Lightwood  makes  a  further  division  between  Pure 
and  General  Jurisprudence,1 — the  first  dealing  with  dis- 
tinctions, the  second  with  principles.  But  it  seems  im- 
possible practically  to  carry  out  this  difference.  What 
is  a  contract  and  what  are  the  different  kinds  of  con- 
tracts, would  be,  according  to  this  division,  matters  of 
Pure  Jurisprudence,  while  the  question  what  contracts 
could  be  enforced  would  be  for  General  Jurisprudence. 
But  the  kinds  of  contracts  are  innumerable;  they  may 
concern  hats  or  cows,  they  may  be  between  whites  or 
negroes,  they  may  be  made  at  noon  or  at  midnight,  in 
town  or  in  the  country,  in  winter  or  summer,  they  may  be 
written  on  white  paper  or  on  blue  paper;  there  is  a 
myriad  of  possible  distinctions;  but  the  only  distinctions 
which  are  of  consequence  for  Jurisprudence,  for  any  kind 
of  Jurisprudence,  are  those  which  affect  the  question  of 
enf orceability ;  and  it  is  therefore  practically  impossible 
to  consider  distinctions  and  principles  separately  as  the 
subject-matter  of  Pure  and  General  Jurisprudence  re- 
spectively. 

Historical         The  history  of  institutions  is  no  mean  aid  to  the  under- 

prudence      standing  of  their  nature.     Especially  is  it  useful  with 

regard  to  the  anomalies  and  lack  of  symmetry  in  an 

»Pp.  13-17. 


JURISPRUDENCE  151 

actual  system  which  render  its  substance  hard  to  classify 
and  difficult  to  remember.  It  helps  to  distinguish  those 
parts  of  the  Law  which  correspond  to  modern  ideas  from 
those  which  are  survivals  of  an  earlier  age.  For  instance : 
To  the  arrangement  of  the  Law,  according  to  our  modern 
notions,  with  reference  to  the  nature  of  rights  and  duties, 
the  forms  of  action  have  been  a  hindrance,  but  that  hin- 
drance is  greatly  lessened  when  we  understand  how  tres- 
pass, and  trover,  and  assumpsit  had  their  origin  in  a  time 
when  the  Law  was  arranged  with  reference  not  to  rights, 
but  to  remedies.  Again,  the  difficulty  of  remembering 
legal  doctrines  which  have  no  present  rational  excuse  for 
being  is  alleviated  if  we  can  trace  them  to  the  times  when 
they  had  their  origin.  A  present  reason  is  better  than  a 
past  reason,  but  a  past  reason  is  better  than  no  reason  at 
all. 

But  the  historical  method  has  its  disadvantages;  it 
begets  literary  rather  than  practical  study;  it  hinders 
the  grasping  of  the  Law  of  the  present  time  as  a  whole. 
Mr.  Frederic  Harrison  has  some  noteworthy  remarks  on 
this  point.1  Speaking  of  the  historical  study  of  the 
Roman  Law,  which  was  so  stimulated  by  the  discovery  of 
Gaius,  he  says:  "The  result,  to  the  overburdened 
memory  of  the  student,  is  too  often  to  lead  to  a  spirit  of 
legal  anachronism  thoroughly  hostile  to  the  really  legal 
mind.  ...  It  is  desirable  to  know  how  irregular,  how 
arbitrary,  and  how  archaic  the  Roman  system  once  was; 
but  the  essential  thing  is  to  know  how  symmetrical,  how 
wise,  how  scientifically  right  it  ultimately  became." 

*31  Fortn.  Rev.  120-130;  Jurisprudence  and  the  Conflict  of  Laws, 
pp.  86-87. 


CHAPTER  VIII 

STATUTES 

WE  have  hitherto  been  considering  the  Nature  of  the 
Law.  I  have  .defined  the  Law  as  the  rules  laid  down 
by  the  courts  for  the  determination  of  rights  and  duties, 
and  I  have  endeavored  to  point  out  the  difference  be- 
tween the  Law  and  the  Sources  from  which  the  Law  is 
drawn,  and  the  confusion  and  errors  which  have  arisen 
from  not  distinguishing  between  them.1  We  will  now 
take  up  the  consideration  of  these  Sources. 

The  first  Sources  from  which  the  courts  of  any  human 
society  draw  the  Law  are  the  formal  utterances  of  the 
legislative  organs  of  the  society.  We  can  conceive  of 
a  society  with  judicial  but  no  legislative  organs.  The 
courts  of  such  a  society  would  follow  rules  derived  by 
them  from  other  sources,  say,  from  former  decisions  of 
their  own,  or  from  custom.  But  all  modern  civilized 
political  societies  have,  in  fact,  legislatures. 

In  any  organized  society  there  may  be,  and,  in  political 
societies  particularly.,  there  often  are,  several  bodies  which, 

*P.  84,  ante. 
152 


STATUTES  153 

within  the  limits  marked  out  by  the  organization  of  the 
society,  or  by  the  orders  or  tolerance  of  the  supreme 
legislative  body,  have  legislative  functions.  In  a  country 
with  a  written  constitution,  the  body  of  persons  which 
enacts  the  constitution  is  the  supreme  legislature;  all 
other  bodies  and  persons  having  legislative  powers,  in- 
cluding the  ordinary  Legislature,  Congress,  Assembly, 
Cortes,  are  subordinate  to  it. 

In  most  modern  societies  the  chief  legislative  functions 
are  given  not  to  individuals,  but  to  assemblies.  In 
political  societies  these  assemblies  are  now  usually  rep- 
resentative, but  sometimes  all  the  persons  considered  as 
having  political  power  have  met  and  voted,  as,  for  in- 
stance, in  the  ancient  Greek  cities,  in  some  of  the  Swiss 
cantons,  and  in  the  town  meetings  of  New  England. 
And  in  societies  not  political  the  legislatures  are  often 
composed  of  all  the  members  of  the  society,  as  in  the 
meetings  of  the  stockholders  of  corporations  and  of  the 
members  of  clubs. 

Although  at  the  present  day  the  chief  legislative  func- 
tions are  vested  in  bodies  more  or  less  numerous,  whether 
representative  or  not,  yet  many  legislative  powers  are 
given  to  individuals.  Such  is  the  power  of  the  King 
or  other  head  of  the  government  to  issue  proclamations, 
of  a  Secretary  of  the  Treasury  or  Postmaster-General  to 
make  regulations,  of  a  Commander-in-chief  to  issue  gen- 
eral orders;  and  so  down,  through  all  grades  of  officials, 
to  a  subaltern  of  infantry  commanding  a  post. 

The  variety  of  names  given  to  the  legislative  acts  of  Varlous 
these  bodies  is  great:  constitutions,  statutes,  laws,  acts,  ?ioSnfnof 
ordinances,  proclamations,  regulations,  orders ;  among  the  £ 
Romans,  leges,  plebiscUa,  senatus-consulta,  edicta,  consti- 


154          THE  NATURE  AND  SOURCES  OF  THE  LAW 

tutiones;  among  the  Germans,  gesetze,  verordnungen, 
There  is,  unfortunately,  no  word  recognized  as  the  name 
of  the  genus.  I  know  of  no  better  way  than  to  take  the 
name  which  is  given  to  the  utterances  of  the  highest  or- 
dinary legislature  in  a  political  society,  apply  it  to  the 
whole  genus,  and  call  them  all  statutes. 

This  variety  of  names  has  given  rise  to  a  notion  that 
there  is  an  essential  difference  between  a  statute  and  a 
proclamation,  for  example;  and,  of  course,  there  may 
be  the  gravest  distinction  so  far  as  politics  are  concerned, 
but  from  the  point  of  view  of  Jurisprudence,  the  differ- 
ence between  statutes  and  proclamations  is  immaterial. 
They  both  set  forth  general  rules  which  are  equally  bind- 
ing, and  binding  in  the  same  way,  on  the  courts.  The 
fact  that  in  countries  without  a  written  constitution  the 
power  of  the  highest  legislature  is  practically  unlimited, 
while  officials  having  legislative  functions  are  generally 
closely  limited  in  their  use,  tended  to  put  the  former 
into  a  separate  class;  but  now  that  the  existence  of  gov- 
ernments with  written  constitutions  has  familiarized  us, 
at  least  in  the  United  States,  with  frequent  and  strict 
limitations  upon  the  powers  of  the  highest  ordinary  legis- 
lative bodies,  there  seems  small  reason  for  distinguish- 
ing between  statutes  and  proclamations.  Every  utter- 
ance of  the  most  subordinate  official,  if  it  be  within  the 
legislative  powers  given  to  him,  directly  or  indirectly, 
by  the  organization  of  the  State,  is  as  binding  on  the 
courts  as  any  act  of  the  supreme  parliament  or  assembly, 
while  every  utterance  of  the  highest  legislative  body  which 
is  beyond  its  constitutional  competence  is  as  invalid  as 
an  unauthorized  order  of  the  lowest  official.1 
'See  pp.  110-112,  ante. 


STATUTES  155 

The  possession  of  legislative  power  is  not  confined  to 
political  bodies;  every  organized  body  of  men  may  have 
a  legislative  organ,  and  most  of  such  bodies  do,  in  fact, 
have  one,  be  they  churches,  business  corporations,  chari- 
table societies,  or  social  clubs. 

The  formal  utterances  of  the  legislatures  of  non- 
political  organized  bodies  are  not  commonly  called  stat- 
utes; thus,  we  speak  of  the  canons  of  a  church,  or  the 
by-laws  of  a  business  corporation.  But  this  is  a  matter 
of  nomenclature  only;  for  the  purposes  of  Jurisprudence 
they  are  identical  in  character  with  the  statutes  of  a 
State;  that  is,  they  are  binding  upon  the  courts  of  the 
organization  of  which  they  are  the  canons  or  by-laws. 

A  distinction  should  be  noticed  among  organized  bodies 
which  are  not  States.  Some  of  these  bodies,  although 
not  States,  are  yet  political ;  they  are  organs  of  the  State, 
and  are  formed  for  carrying  out  its  purposes;  some  of 
its  powers  are  delegated  to  them  for  these  purposes;  and, 
if  these  bodies  have  legislatures,  the  general  rules  de- 
clared by  such  legislatures  are  really  declared  by  the 
State ;  they  are  its  statutes.  Municipal  bodies,  like  cities, 
are  such  political  bodies,  and  the  ordinances  issued  by 
them  are,  in  truth,  statutes  of  the  State.  So  when  legis- 
lative power  is  granted  to  an  individual,  as  to  a  King, 
President,  Secretary,  or  General,  and  he  puts  forth 
proclamations  or  regulations  containing  general  rules,  the 
rules  are,  in  truth,  put  forth  by  the  State ;  and  for  juristic 
purposes  they  are  identical  with  the  statutes  of  the  or- 
dinary supreme  Legislature. 

But  a  church,  or  a  business  corporation,  or  a  charitable  j^1/^,  of 
society,  or  a  club,  is  not  an  organ  of  the  State;  it  is  not  theestate° 
a  political  body  created  for  political  purposes;  and  its 


156          THE  NATURE  AND  SOURCES  OF  THE  LAW 

canons  or  by-laws  or  rules  are  not  statutes  of  the  State. 
It  is  true  that  such  bodies  often  owe  their  existence  to 
the  State,  and  can  legislate  only  on  the  subjects  and 
within  the  limits  prescribed  by  it,  but  the  meeting  of 
the  stockholders  of  an  automobile  manufacturing  com- 
pany is  not  an  organ  of  the  State  to  carry  out  its  pur- 
poses; it  is  the  organ  of  the  company  to  carry  into  effect 
the  objects  of  the  company.  The  State  merely  allows  the 
company  to  carry  out  its  objects;  it  does  not  make  these 
objects  its  own. 

If  we  should  call  the  by-laws  of  a  corporation  the 
statutes  of  the  State,  because  the  State,  if  it  saw  fit,  could 
prevent  their  being  passed  by  the  stockholders,  and  be- 
cause it  will  open  its  courts  to  enforce  the  observance  of 
them  by  the  members  of  the  corporation,  we  should  have 
to  call  every  general  rule  issued  by  a  person  whom  the 
State  permits  to  issue  it,  and  which  it  will  regard  in  its 
courts,  a  statute  of  the  State.  Thus,  a  general  rule  by 
the  head  of  a  household  that  the  children  shall  go  to 
bed  at  eight  o'clock,  or  that  the  cook  shall  always  boil 
eggs  for  two  minutes  and  a  half,  would  be  a  statute  of 
the  State. 

Indeed,  this  would  not  be  confined  to  general  rules: 
every  particular  order  given  by  any  person  who  has  a 
right  to  give  such  an  order,  although,  from  its  lack  of 
generality,  it  could  not  be  called  a  statute  or  a  law,  would 
yet  be  a  command  of  the  State.  A  master  has  a  right 
to  tell  a  servant  to  bring  him  the  mustard.  Should  she 
refuse,  he  has  a  right  to  dismiss  her,  and  the  State  will 
protect  him  in  this  right ;  and,  therefore,  on  the  theory  we 
are  considering,  the  order  to  bring  the  mustard  is  a  com- 


STATUTES  157 

mand  of  the  State.1  Even  Austin,  I  think,  would  shrink 
from  such  a  conclusion. 

Though  courts  of  the  State  often  have  occasion  to  en- 
force the  legislation  of  non-political  organizations,  it  is 
not  a  source  of  Law  to  them.  Thus,  suppose  a  member 
of  a  club  is  charged  with  improper  conduct,  and  a  com- 
mittee is  chosen,  in  accordance  with  the  by-laws,  to  try 
him,  the  by-laws  are  the  sources  of  Law  to  the  committee 
as  the  judicial  organ  of  the  club;  they  are  commands 
of  the  club  to  them  and  binding  upon  them;  but  suppose 
the  peccant  member  is  expelled  and  sues  for  reinstatement 
in  a  court  of  the  State:  in  that  case  the  by-laws  do  not 
come  as  commands  to  the  judge  from  the  State;  they  are 
simply  facts,  one  of  the  elements  of  the  contract  which 
the  member  made  with  the  club  on  joining  it.  The  dis- 
tinction would  generally  be  brought  out  by  the  procedure. 
The  club  committee  would  take  judicial  cognizance  of 
the  club's  by-laws;  the  court  of  the  State  would  require 
them  to  be  proved. 

It  should  be  observed  that  though  the  nature  of  that 
which  is  a  source  of  Law  for  a  non-political  body  but  not 
for  the  State,  is  brought  out  with  the  most  clearness  in 
considering  legislative  enactments,  it  is  also  true  that 
other  sources  of  Law  for  a  non-political  body,  precedents 
in  a  church  court,  for  instance,  cannot  properly  be  con- 
sidered sources  of  Law  for  the  State.2 

To  put  the  whole  matter  in  another  way.  A  distinc- 
tion is  to  be  made  between  the  general  rules  which  the 

*See  p.  107,  ante. 

'Of  course  this  has  no  application  to  courts  which,  while  called 
church  courts,  are  simply  part  of  the  State  machinery,  as  is  the 
case  with  the  ecclesiastical  courts  in  England.  See  p.  109,  note, 
ante. 


158          THE  NATURE  AND  SOURCES  OF  THE  LAW 

courts  of  a  State  lay  down,  that  is,  the  Law,  and  the 
decisions  which  they  make.  In  making  the  decisions  they 
apply  the  Law  to  the  facts.  Among  the  facts  may  be  the 
rules  established  by  non-political  bodies,  and  these  rules 
are  then  elements  or,  if  you  please,  sources  of  the  decisions, 
but  they  are  not  sources  of  the  Law. 

It  is  convenient  to  distinguish  those  rules  made  by 
the  State,  either  directly  or  through  its  agents,  from  those 
made  by  other  bodies  or  persons  by  permission  of  the 
State,  and  to  regard  the  former  as  sources  of  Law,  and 
the  latter  as  facts;  but  (except  as  to  matters  of  proof, 
which  are  likely  to  be  different  in  the  two  classes,  but 
may  be  subject  to  a  great  number  of  artificial  rules), 
there  is  little  practical  difference  whether  we  say  that  the 
State  has  commanded  children  to  obey  their  teacher's 
orders  and  that  Mr.  Barlow  has  ordered  Tommy  Merton 
to  take  his  finger  out  of  his  mouth,  or  whether  we  say 
that  the  State  has  commanded  Master  Tommy  to  remove 
the  misplaced  member.  In  the  suit  of  Merton  v.  Barlow 
for  trespass  quid  vi  et  armis,  the  court  would  reach  the 
same  result  on  the  one  theory  as  it  would  on  the  other. 

The  fact  that  the  distinction  is  not  of  vital  importance 
explains,  perhaps,  the  persistence  in  Germany  of  what 
is  called  autonomy,  and  on  which  there  has  been  much 
discussion.  Autonomy  is  the  legislative  power  of  a  body 
other  than  the  State  to  make  orders  which  are  sources 
of  Law  to  the  courts  of  the  State.  On  two  things  all 
late  writers  seem  agreed.  First,  that  the  orders  put 
forth  by  officials  of  the  State  are  not  autonomic ;  they  are 
simply  the  commands  of  the  State  issued  through  these 
officials  instead  of  through  the  ordinary  legislature.  Sec- 
ondly, that  the  by-laws  of  ordinary  private  corporations 


STATUTES  159 

are  not  autonomic;  such  by-laws  are  properly  sources  of 
Law  to  the  corporation,  but  they  are  not  sources  of  Law 
to  the  courts  of  the  State ;  to  them  they  are  simply  facts. 
The  truth  seems  to  be  that  the  whole  conception  of 
autonomy  is  an  historical  and  not  a  logical  one;  that 
it  springs  from  a  lack  of  clearness  of  perception.  In  the 
loose  political  organization  of  the  Middle  Ages,  many 
towns  and  other  communities,  though  situated  in  a  king- 
dom or  duchy,  were  largely  self -governed,  and  had  written 
laws  which  were  called  statuta.  Such  communities  were 
originally  separate  political  bodies  with  independent 
organizations,  but  in  a  state  of  subjection,  more  or  less 
well  defined,  to  the  feudal  lord  on  whose  territory  they 
were  situated.  At  present  this  condition  of  things  has 
passed  away,  the  towns  have  become  simply  municipal 
agents  of  the  larger  State,  the  kingdom  or  duchy,  and 
any  rules  passed  by  them  are  to  be  considered  as 
emanating  from  such  larger  State.  During  this  process 
of  degeneration,  or  at  least  of  change,  while  these  towns 
had  ceased  to  be  independent  States,  but  were  not  yet 
recognized  as  simply  organs  of  the  larger  State,  these 
ideas  of  autonomy  arose.1 

The  form  of  a  statute  is,  for  the  purposes  of  the  Law,   Form  of 
.  ,       TTT,     ,         .     .  .  .  statutes 

immaterial.      Whether    it    is    committed    to   writing    or 

whether  it  is  pronounced  orally  is  indifferent,  though,  of 
course,  for  the  sake  of  preservation,  it  is  in  fact  always 
committed  to  writing. 

1  It  is  not  impossible  that  a  similar  change  is  going  on  in  the 
relation  of  the  States  of  the  American  Union  to  the  Federal  Gov- 
ernment; such  changes  are  apt  to  be  hidden  from  the  eyes  of  con- 
temporaries. 

On  autonomy  see,  further,  Appendix  IV. 


160          THE  NATURE  AND  SOURCES  OF  THE  LAW 

The  Romans  made  a  distinction  between  jus  scriptum 
and  jus  non  scriptum,  and  took  the  phrases  literally,  in- 
cluding in  the  jus  scriptum  not  only  the  statutes  of  the 
supreme  legislative  bodies,  but  also  the  edicta  magis- 
tratuum  and  even  the  responsa  prudentium.1  As  Savigny 
says,2  it  was  the  form  of  the  Law  at  its  origin  that  deter- 
mined its  name. 

In  France,  during  the  Middle  Ages,  jus  scriptum  was 
used  for  the  Roman  Law  as  opposed  to  the  customary 
Law,  as  in  the  Register  of  a  Parliament  of  1277,  cited 
by  Ducange  (sub  voc.  Jus  scriptum),  "Li  Advocat  ne 
soient  si  hardi  de  eux  mesler  d'aleguer  Droit  escrit,  Id  u 
Coustumes  ayent  leu,  mes  usent  de  Coustumes." 

Sir  Matthew  Hale,  in  his  History  of  the  Common  Law, 
confines  the  term  lex  scripta  to  Acts  of  Parliament,  "which 
in  their  original  formation  are  reduced  into  writing,  and 
are  so  preserved  in  their  original  form,  and  in  the  same 
style  and  words,  wherein  they  were  first  made."  The 
rest  of  the  English  Law  he  calls  leges  non  scriptce,  includ- 
ing the  Civil  and  Canon  Law,  so  far  as  they  are  in  force 
in  England.3  Blackstone  follows  Hale.4 

Thibaut  says  that  jus  scriptum  is  made  up  of  the 
commands  proceeding  directly  from  the  supreme  power 
of  a  State,  whether  it  be  actually  written  or  not;5  and 
Austin  gives  this  as  the  meaning  of  the  word  in  the 
mouths  of  the  modern  Civilians,  but  justly  remarks  that 
"nothing  can  be  less  significant  or  more  misleading  than 
the  language  in  which  it  is  conveyed";  and  that  it  is 

1See  p.  201,  post. 

»1  Heut.  rom.  Recht.   §  22. 

8  Hale,  Hist.  Com.  Law    (4th  ed.)    23;    (5th  ed.)    27. 

*1  Bl.  Com.  63. 

6  Thibaut,  Pand.  §  10. 


STATUTES  161 

unsuited  to  express  any  distinction  of  importance.1  The 
terms  jus  scriptum  and  jus  non  scriptum  seem  to  have 
been  given  up  by  the  late  German  writers. 

In  view  of  the  uncertainty  of  the  meaning  of  the 
phrases  "written  law,"  and  "unwritten  law/'  of  the  in- 
aptness  of  these  phrases  to  any  of  the  supposed  meanings 
except  that  of  the  Romans,  and  of  the  unimportance  of 
the  distinction  which  they  denoted  among  the  latter,  the 
best  way  is  to  follow  the  modern  German  practice,  and 
discontinue  the  use  of  the  terms  altogether. 

A  statute  is  a  general  rule.  A  resolution  by  the  legis-  Generality 
lature  that  a  town  shall  pay  one  hundred  dollars  to 
Timothy  Coggan  is  not  a  statute.  This  mark  of  gen-< 
erality  which  distinguishes  a  statute  from  other  legis- 
lative acts  does  not  seem  to  establish  a  very  important 
distinction;  both  the  statute  and  the  resolution  or  other 
particular  enactment  emanate  from  the  same  authority, 
and  both  alike  are  binding  on  the  courts.  In  a  suit  by 
Coggan  against  the  town  for  not  paying  the  one  hundred 
dollars,  or  by  the  town  against  its  treasurer's  bondsmen 
for  paying  it  without  authority,  the  resolution  would  be 
as  binding  on  the  court  as  if  it  had  been  a  statute  which 
concerned  every  citizen.  The  difference  between  statutes 
and  other  legislative  acts,  though  of  little  importance 
practically,  is,  however,  of  consequence  in  Jurisprudence, 
for  Jurisprudence  is  a  systematic  and  scientific  arrange- 
ment of  general  rules;  isolated  particular  commands  are 
ordinarily  no  proper  subjects  for  it. 

The  generality  necessary  in  order  that  a  legislative 
enactment  be  recognized  as  a  statute,  may  come  either 
from  its  applying  to  a  whole  community  or  class,  or  per- 

»2  Jur.    (4th  ed.)   530. 


162 


TILE  NATURE  AND  SOURCES  OF  THE  LAW 


Foreign 
statutes 


Enactment 
of  statutes 


Civil 
Law 


haps  from  its  applying  as  a  permanent  (though  not  nec- 
essarily perpetual)  rule  to  the  conduct  of  an  individual; 
for  instance,  an  enactment  that  A.  should  never  pay  any 
taxes  would  perhaps  be  properly  called  a  statute.  There 
are  some  sensible  remarks  on  the  subject  in  Mr.  Ham- 
mond's note  to  the  first  volume  of  Blackstone's  Com- 
mentaries,1 but  it  seems  a  trifling  matter  on  which  to 
spend  much  thought. 

It  is  only  the  Acts  of  the  legislative  organs  of  a  court's 
own  State  that  come  under  the  head  of  statutes  as  sources- 
of  Law  for  such  courts.  The  Law  of  a  State  may  direct 
that  in  certain  contingencies  the  statutes  of  foreign  States 
shall  be  taken  account  of  by  its  courts,  but  such  statutes- 
are  no  more  sources  of  the  Law  of  the  State  than  are  the 
provisions  of  a  contract  or  will  which  may  be  brought  in 
question.2 

What  is  necessary  for  a  statute  to  have  power  as  a 
source  of  law  ?  It  must,  of  course,  be  passed  by  the  legis- 
lative body,  but,  beyond  this,  is  any  publication  required  ? 
The  practice  in  the  matter  greatly  varies. 

In  the  republican  period  of  Roman  history  the  word 
"promulgare"  meant  to  bring  forward  a  project  of  a  law; 
later  it  seems  to  have  been  used  in  the  sense  of  issuing 
a  law.3  During  the  republic,  no  publication  apart  from 

*P.  126,  note  15. 

"'Where  foreign  statutes  are  cited  as  authorities,  as  is  done 
frequently,  for  instance,  by  Swiss  courts  with  regard  to  German 
statutes,  the  foreign  law  is  treated  not  as  a  statute  but  as  'written 
reason,'  just  as  the  opinions  of  an  author  might  be  cited."  Eugen 
Ehrlich,  Freie  Rechtsfindung,  Judicial  Freedom  of  Decision,  Ch.  I, 
§  9.  Transl.  in  Science  of  Legal  Method,  p.  59.  (Modern  Legal  Philos- 
ophy Series.)  The  same  sort  of  thing  is  occasionally  done  in  the 
United  States,  when  a  court  refers,  for  instance,  to  the  terms  of  a 
Negotiable  Instrument  Law  enacted  in  another  State. 

3  Cicero,  Phil.  I,  10;  V,  3;  Livy,  III,  9;  Festus,  De  signific.  verb, 
(ed.  Muller),  p.  224. 


STATUTES  163 

the  passage  of  a  statute  appears  to  have  been  required 
as  a  condition  precedent  to  its  going  into  effect.  Under 
the  Empire,  the  Emperor  had  both  the  legislative  and 
executive  power;  but  in  addition  to  the  expression  of  his 
will  as  legislator,  there  does  not  seem  to  have  been  any 
further  step  necessary  to  be  taken  by  him  as  an  executive 
officer  to  make  a  statute  a  valid  one.  I  am  aware  of  no 
theory  in  the  Roman  Law  that  any  "publication"  in  the 
sense  of  the  modern  Civilians  was  necessary  to  make  a 
statute  operative.1 

According  to  the  theory  which  now  prevails  generally 
on  the  Continent  of  Europe,  four  things  are  necessary 
^in  order  for  a  statute  to  become  a  source  of  Law.  It 
must  be  (1)  passed  by  the  legislature,  (2)  declared  to 
be  a  law  by  a  proper  document,  (3)  ordered  to  be  pub- 
lished, and  (4)  published.  The  first  of  these  acts  is 
performed  by  the  legislative  department  of  the  Govern- 
ment, and  the  other  three  by  the  executive  department. 
The  name  commonly  used  to  indicate  the  performance  of 
the  second  and  third  acts  in  France  and  in  those  coun- 
tries which  have  taken  their  modern  Jurisprudence  from 
France  is  promulgation;  in  Germany  it  has  usually  been 
called  Ausfertigung. 

The  distinction  between  promulgation  and  publication 
has  been  well  put  thus:  "On  a  quelquefois  considere 
ces  deux  termes  com/me  synonymes;  leur  signification  est 
cependant  loin  d'etre  identique.  La  promulgation  est 
I'acte  par  lequel  le  roi  en  sa  qualite  de  chef  du  pouvoir 
executifj  atteste  au  corps  social  I'existence  de  Id  loi  et  en 
ordonne  I'execution;  la  publication,  au  contraire,  est  le 
mode  de  publicite  a  I'aide  duquel  la  loi  est  portee  a  la 

1  Kriiger,  Geschichte  der  Quellen,  §  33,  pp.  266,  267. 


164     THE  NATURE  AND  SOURCES  OF  THE  LAW 

connaissance  des  citoyens."  The  distinction,  however, 
seems  often  to  be  disregarded,  and  promulgation  to  be 
used  as  including  publication.1 

In  some  of  the  Continental  countries,  the  chief  execu- 
tive officer  has  no  part  in  legislation.  This  is  the  case 
with  the  Emperor  of  Germany  and  the  President  of  the 
French  Republic.  In  such  countries  he  has  no  concern 
with  the  first  of  the  acts  mentioned ;  but  generally  in  the 
monarchical  countries  of  Europe  he  takes  part  in  legisla- 
tion and  therefore  shares  in  the  performance  of  the  first 
act.  What  he  does  as  legislator  is  called  "sanctioning," 
to  distinguish  it  from  the  promulgation  which  is  his  act  as 
administrator.  Thus  in  the  Constitutional  Charter  of  the  • 
Bourbons  on  their  return,  in  1814,  it  was  provided:  "Le 
Roi  seul  sanctionne  et  promulgue  les  lois,"  while  in  the 
Constitution  of  the  French  Republic  for  1848  we  read: 
"Le  President  de  la  Republique  promulgue  les  lois  au  nom 
du  peuple  franQais." 

A  corollary  from  the  doctrine  of  the  need  of  promulga- 
tion and  publication  arises  from  the  promulgation  being 
made  known  in  different  places  and  at  different  times. 
The  Code  Napoleon,2  for  instance,  provides  as  follows: 
"Les  lois  sont  executoires  dans  tout  le  territoire  franc/vis, 
en  vertu  de  la  promulgation  qui  en  est  faite  par  I'Em- 
pereur.  Elles  seront  exeputees  dans  chaque  partie  de  I'Em- 
pire  du  moment  ou  la  promulgation  en  pourra  etre  connue. 
La  promulgation  faite  par  I'Empereur  sera  reputee  connue 
dans  le  departement  ou  siegera  le  gouvernement,  un  jour 
apres  celui  de  la  promulgation;  et,  dans  chacun  des  autres 

'See  1  Aubry  et  Rau,  Cours  de  droit,  §  26;    1  Planiol,  Traite 
elementaire,  §  173. 
•Art.  1. 


STATUTES  165 

departements,  apres  I'expiration  du  meme  delai,  aug- 
mente  d'autant  de  jours  qu'il  y  aura  de  fois  dix  myrior 
metres  entre  la  ville  ou  la,  promulgation  en  aura  ete  faite 
et  le  chef-lieu  de  chaque  departement"  ;  and,  save  by  the 
changes  called  for  by  successive  revolutions  or  restora- 
tions, the  Law  has  so  remained,  except  so  far  as  it  is  modi- 
fied by  an  ordinance  of  the  year  1816,  which  provides  that 
the  promulgation  of  laws  shall  result  from  their  insertion 
in  the  Bulletin  des  Lois?  and  that  the  promulgation  shall 
be  considered  known  in  the  Capital,  in  accordance  with 
the  Code,  the  day  after  the  Bulletin  des  Lois  is  received 
from  the  government  printer  by  the  Ministry  of  Justice, 
the  time  in  the  departments  being  calculated  from  this  ac- 
cording to  the  Code. 

The  fact  of  a  statute  going  into  effect  in  different  parta 
of  a  country  on  different  days  would  seem  likely  to  pro- 
duce difficult  questions  of  the  same  kind  as  those  which 
arise  in  the  Conflict  of  Laws;  in  the  case  of  the  latter 
there  being  a  conflict  between  the  laws  of  different  places, 
and  in  the  case  of  the  former  a  conflict  between  the  laws 
of  different  times.  Thus,  suppose  two  Frenchmen,  the 
cliefs-lieux  of  whose  departments  are  one  ten,  and  the  other 
thirty,  myriametres  from  Paris  should  make  a  contract 
on  September  20  by  telegraph,  and  that  on  September  17 
the  Bulletin  des  Lois,  containing  a  statute  which  affects 
the  contract,  has  been  received  at  the  Ministry  of  Justice, 
— does  the  statute  govern  the  contract  ? 

The  provision  shows  a  striking  difference  between  the 
French  and  the  English  mind.  A  Frenchman  says  a  man 
cannot  know  the  law  until  he  has  heard  or  seen  it;  it  is 

JThe  Journal  Officiel  was  substituted  for  the  Bulletin  des  Lot* 
by  decree  of  Nov.  5,  1870. 


166          THE  NATURE  AND  SOURCES  OF  THE  LAW 

unjust  to  hold  a  man  bound  by  a  statute  which  he  could 
not  know;  the  further  a  man  lives  from  the  seat  of  Gov- 
ernment the  longer  will  it  be  before  the  news  of  the  mak- 
ing of  a  statute  reaches  him ;  and  not  to  have  a  provision 
like  that  of  the  Code  Napoleon  would  be  the  greatest  in- 
justice. An  Englishman  would  be  likely  to  say:  Who 
reads  the  Bulletin  des  Lois?  If  it  contains  a  statute  which 
is  of  great  importance,  the  whole  country  will  know  that 
such  a  statute  has  been  passed  by  the  legislature  long  be- 
fore it  is  promulgated.  If  the  statute  is  not  one  that  has 
excited  public  interest,  the  arrival  of  the  Bulletin  des 
Lois  at  the  chef-lieu  of  a  department  is  one  of  the  most 
insignificant  factors  in  the  general  knowledge.  Is  it  im- 
mediately known  by  one  in  a  thousand  or  one  in  twenty 
thousand  of  the  inhabitants  ?  It  is  foolish  to  worry  about 
one  or  more  grains  of  sand  in  such  a  hea^>  of  ignorance. 
Does  any  man  know  all  the  Law  governing  his  actions? 
It  is  a  serious  evil  to  complicate  the  Law,  and  offer  tempt- 
ing opportunities  for  litigation  by  making  a  statute  ap- 
plicable to  some  citizens  on  one  day  and  to  other  citizens 
on  another. 

The  Scotch  Statute  of  1581,  c.  128,  recited  "that  often- 
times doubtes  and  questions  arisis,  touching  the  Proclama- 
tion of  the  Actes  of  Parliament,  and  publication  thereof: 
It  being  sumtime  alledged  to  be  the  lieges,  that  they  are 
not  bound  to  observe  and  keepe  the  samin  as  lawes,  nor  in- 
cur ony  paines  conteined  therein,  quhill  the  same  be  pro- 
clamed  at  the  mercat  croces  of  the  head  Burrowes  of  all 
Schires,"  and  then  proceeded  to  enact  that  all  acts  and 
statutes  of  Parliament  "sail  be  published  and  proclamed 
at  the  mercat-croce  of  Edinburgh  onely,  Quhilk  publica- 
tion .  .  .  to  be  als  valiable  and  sufficient  as  the  samin 


STATUTES  167 

were  published  at  the  head  burrowes  of  the  haill  Schires 
within  this  Realme.  .  .  .  The  haill  Lieges  to  be  bounden 
and  astricted  to  the  obedience  of  the  saidis  Actes  as  Lawes, 
fourtie  dayes,  after  the  publication  of  the  samin,  at  the 
said  mercat-croce  of  Edinburgh,  being  by-past."  *  Since 
the  Union  there  have,  of  course,  been  no  Scottish  Parlia- 
ments. 

In  England  the  King  assents  to  the  passing  of  Acts  Enactment 

of  statutes: 

of  Parliament  as  one  of  the  members  of  the  legislature;  English 
to  use  the  nomenclature  common  on  the  European  con- 
tinent, he  "sanctions"  them;  but  no  "publication"  is  re 
quired  for  them.  Those  who  are  satisfied  with  the  reason 
given  by  Blackstone  can  accept  it;  it  is,  he  says,  "because 
every  man  in  England  is,  in  judgment  of  law,  party  to  the 
making  of  an  act  of  parliament,  being  present  thereat 
by  his  representatives."  2 

The  reason  indeed  is  much  older  than  Blackstone.  In 
early  times  the  laws  of  each  Parliament  were  transcribed 
on  parchment  and  sent  by  the  King's  writ  to  the  sheriff 
of  every  county,  to  be  there  proclaimed.  Lord  Coke  3  gives 
copies  of  a  writ  in  the  tenth  year  of  Edward  III.,  and 
another  in  the  first  year  of  Eichard  II.,  and  says  that  the 

«/  «/ 

like  writs  continued  until  the  beginning  of  the  reign  of 
Henry  VII.  But  in  the  case  of  Rex  v.  Bishop  of  Chi- 
Chester*  which  was  prcemunire  on  a  statute,  upon  Serjeant 
Cavendish,  of  counsel  with  the  defendant,  objecting  that 
the  statute  had  never  been  published  in  the  county,  Sir 
Robert  Thorpe,  C.  J.,  said:  "Although  the  proclama- 

»See  1  Erskine,  Inst.  Bk.  1,  tit.  1,  §  37. 

«1  Bl.  Com.  185.     See  Austin's  sneer,  2  Jur.   (4th  ed.)   542,  543. 

»4th  Inst.  26. 

4  Year  Book,  39  Edw.  III.  7   (1365). 


168          THE  NATURE  AND  SOURCES  OP  THE  LAW 

tion  be  not  made  in  the  county,  every  one  is  bound  to 
know  it  [the  statute]  as  soon  as  it  is  made  in  Parliament; 
for  as  soon  as  the  Parliament  hath  concluded  anything, 
the  Law  intends  that  every  person  hath  notice  thereof, 
for  the  Parliament  represents  the  body  of  the  whole  realm, 
and,  therefore,  it  is  not  requisite  that  any  proclamation  be 
made,  seeing  the  statute  took  effect  before." 

The  distinction  in  England  between  public  statutes  and 
private  statutes  is  well  known.  The  courts  take  judicial 
cognizance  of  public  statutes,  and  may  consult  any  means 
of  information  they  please;1  and  the  reason  which 
Dwarris  gives  may  well  be  the  true  one,  namely,  the  im- 
possibility of  proving  important  ancient  public  statutes 
by  anything  that  would  be  legal  evidence  in  cases  of  a 
private  nature.  In  fact,  there  are  several  early  English 
statutes  which  do  not  appear  on  the  rolls  of  Parliament, 
and  of  which  there  is  no  official  transcript  or  exemplifica- 
tion, and  which  yet  have  been  constantly  recognized  aa 
binding.2 

The  existence  of  private  statutes  must  be  proved  in 
England  by  record  evidence. 

Enactment       In  the  United  States  the  same  doctrine  as  to  public  and 

m  the  private  statutes  would  seem,  at  first  sight,  to  have  been 

states         laid  down.     Thus  the   Supreme   Court  of  the  United 

States  in  1868  3  called  attention  to  the  impropriety  of 

speaking  of  "extrinsic  evidence"  in  reference  to  public 

statutes,  and  ruled  "that  whenever  a  question  arises  in 

a  court  of  law  of  the  existence  of  a  statute,  or  of  the  time 

*2  Dwarris,  Statutes  (2nd  ed.),  465-473. 

*See  Hale  Hist.  Com.  Law,   12-15;   Cooper,  Public  Records,  163- 
184;  cf.  Rex  v.  Jeff  cries,  1  Str.  446. 
» Gardner  v.  The  Collector,  6  Wall.  499. 


STATUTES  169 

when  a  statute  took  effect,  or  of  the  precise  terms  of  a 
statute,  the  judges  who  are  called  upon  to  decide  it  have  a 
right  to  resort  to  any  source  of  information  which  in  its 
nature  is  capable  of  conveying  to  the  judicial  mind  a  clear 
and  satisfactory  answer  to  such  a  question;  always  seek- 
ing first  for  that  which  in  its  nature  is  most  appropriate, 
unless  the  positive  law  has  enacted  a  different  rule." 

But  the  meaning  of  the  words  "always  seeking  for  that 
which  in  its  nature  is  most  appropriate"  is  ambiguous. 
If  they  merely  mean  that  the  court  is  morally  bound  to 
weigh  the  information  like  reasonable  men,  and  give 
credence  to  that  which  ought  to  convince  such  a  man, 
the  proposition,  though  somewhat  unnecessary,  is  innocu- 
ous and  suggests  nothing  new.  But  if  they  mean  that 
the  court,  in  reaching  its  conclusion,  is  bound  by  legal 
rules  to  consider  certain  facts  to  the  exclusion  of  other 
facts,  then  a  novel  element  is  introduced  in  the  mode  of 
conveying  knowledge  of  the  existence  of  public  statutes  to 
the  courts. 

And  this  second  meaning  seems  to  be  that  which  has 
generally,  if  not  universally,  prevailed  in  this  country. 
It  is  true  that  the  Supreme  Court  of  California,  in  1852,1 
recognized  the  power  of  the  court  to  seek  information 
from  any  sources  as  to  the  existence  of  a  public  statute, 
but  this  was  disapproved  and  overruled  by  the  same  court 
fourteen  years  later,2  and  there  appears  to  be  no  other 
like  decision  in  this  country.  It  seems  to  be  generally 
conceded  that  with  us  the  existence  of  both  public  and 
private  statutes  must  be  established,  just  as  the  existence 
of  a  private  statute  must  be  established  in  England,  by 

1  Fowler  v.  Peirce,  2  Cal.  165. 
1  Sherman  v.  Story,  30  Cal.  253. 


170          THE  NATURE  AND  SOURCES  OF  THE  LAW 

record  evidence;  and  the  only  matter  ordinarily  dis- 
cussed is  what  records  are  admissible  and  controlling. 
The  principal  question  which  has  come  up  is  how  far 
the  enrolled  bill  can  be  controlled  by  the  journals  of  the 
Houses.1 
interpreta-  It  may  be  urged  that  if  the  Law  of  a  society  be  the 

tion  of 

statutes  body  of  rules  applied  by  its  courts,  then  statutes  should  be 
considered  as  being  part  of  the  Law  itself,  and  not  merely 
as  being  a  source  of  the  Law;  that  they  are  rules  to  be 
applied  by  the  courts  directly,  and  should  not  be  regarded 
merely  as  fountains  from  which  the  courts  derive  their 
own  rules.  Such  a  view  is  very  common  in  the  books. 
And  if  statutes  interpreted  themselves,  this  would  be  true ; 
but  statutes  do  not  interpret  themselves;  their  meaning 
is  declared  by  the  courts,  and  it  is  with  the  meaning  de- 
clared by  the  courts,  and  with  no  other  meaning,  that  they 
are  imposed  upon  the  community  as  Law.  True  though 
it  be,  that,  of  all  the  sources  from  which  the  courts  draw 
the  Law,  statutes  are  the  most  stringent  and  precise,  yet 
the  power  of  the  judges  over  the  statutes  is  very  great; 
and  this  not  only  in  countries  of  the  Common  Law,  but 
also  on  the  Continent  of  Europe,  where  the  office 'of  judge 
is  less  highly  esteemed. 

A  statute  is  the  expressed  will  of  the  legislative  organ 
of  a  society;  but  until  the  dealers  in  psychic  forces  suc- 
ceed in  making  of  thought  transference  a  working  con- 
trollable force  (and  the  psychic  transference  of  the  thought 
of  an  artificial  body  must  stagger  the  most  advanced  of 
the  ghost  hunters),  the  will  of  the  legislature  has  to  be 
expressed  by  words,  spoken  or  written ;  that  is,  by  causing 
sounds  to  be  made,  or  by  causing  black  marks  to  be  im- 
S0n  this  question  see  Field  v.  Clark.  143  U.  S.  649  (1891). 


STATUTES  171 

pressed  on  white  paper.  "Only  in  an  improper  sense  can 
we  speak  of  a  communication  or  transfer  of  thought;  the 
thought  itself  is  not  transferred,  but  the  word  gives  only 
the  impulse  and  the  possibility  of  a  like  process  of  thought, 
the  reproduction  of  a  like  spiritual  movement  in  the  mind 
of  the  hearer,  as  in  that  of  the  speaker.  .  .  .  The  prin- 
ciple of  communication  by  words  is  wholly  the  same  as 
of  that  by  signs;  one  means  is  complete,  the  other  incom- 
plete, but  they  work  in  the  same  way;  neither  gives  the 
thought  itself,  however  exact  the  expression  of  it  may 
be ;  it  gives  only  the  invitation  and  the  point  of  departure 
for  it  to  reconstruct  itself."  * 

A  judge  puts  before  himself  the  printed  page  of  the 
statute  book;  it  is  mirrored  on  the  retina  of  his  eye  and 
from  this  impression  he  has  to  reproduce  the  thought  of 
the  law-giving  body.  The  process  is  far  from  being  merely 
mechanical ;  it  is  obvious  how  the  character  of  the  judge 
and  the  cast  of  his  mind  must  affect  the  operation,  and 
what  a  different  shape  the  thought  when  reproduced  in 
the  mind  of  the  judge  may  have  from  that  which  it  bore 
in  the  mind  of  the  law-giver.  This  is  true  even  if  the 
function  of  the  judge  be  deemed  only  that  of  attempt- 
ing to  reproduce  in  his  own  mind  the  thought  of  the  law- 
giver; but  as  we  shall  see  in  a  moment,  a  judge,  starting 
from  the  words  of  a  statute,  is  often  led  to  results  which 
he  applies  as  if  they  had  been  the  thought  of  the  legisla- 
ture, while  yet  he  does  not  believe,  and  has  no  reason  to 
believe,  that  his  present  thought  is  the  same  as  any  thought 
which  the  legislature  really  had. 

As  between  the  legislative  and  judicial  organs  of  a 
society,  it  is  the  judicial  which  has  the  last  say  as  to  last  word 

*2  Ihering,  Geist  des  rom.  Rechts  (4th  ed.K  8  44,  pp.  445,  446. 


172          THE  NATURE  AND  SOURCES  OF  THE  LAW 

what  is  and  what  is  not  Law  in  a  community.  To  quote 
a  third  time  the  words  of  Bishop  Hoadly:  "Whoever 
hath  an  absolute  authority  to  interpret  any  written  or 
spoken  laws,  it  is  he  who  is  truly  the  Law-giver  to  all 
intents  and  purposes,  and  not  the  person  who  first  wrote 
or  spoke  them."  *  And  this  is  now  recognized  even  in 
Germany:  "A  judicial  decree  is  as  much  as  a  statute 
the  act  of  the  law-making  power  of  the  State.  Like  the 
legislative  determination  of  the  Law,  so  the  judicial  de- 
terminations are  filled  with  the  power  and  compulsive 
force  of  the  State.  A  judgment  of  a  court  has  the  force 
of  Law;  it  carries  _the  whole  force  of  the  Law  with  it.  A 
judicial  determination  of  Law  has,  in  the  region  belong- 
ing to  it,  the  power  of  a  fixed,  legally  binding  order, 
more  fully,  with  stronger,  more  direct  working,  than  the 
statutory,  merely  abstract  statements  of  the  Law.  The 
power  of  Law  is  stronger  than  the  power  of  Legislation, 
a  legal  judgment  maintains  itself  if  it  contradicts  a 
statute.  Not  by  its  legislative,  but  by  its  judicial  de- 
terminations, the  law-regulating  power  of  the  State  speaks 
its  last  word."  2 

Legislative  But  the  matter  does  not  rest  here.  A  fundamental  mis- 
f requentiy  •  conception  prevails,  and  pervades  all  the  books  as  to  the 
ent  dealing  of  the  courts  with  statutes.  Interpretation  is 

generally  spoken  of  as  if  its  chief  function  was  to  dis- 
cover what  the  meaning  of  the  Legislature  really  was.  But 
when  a  Legislature  has  had  a  real  intention,  one  way  or 
another,  on  a  point,  it  is  not  once  in  a  hundred  times 
that  any  doubt  arises  as  to  what  its  intention  was.  If  that 
were  all  that  a  judge  had  to  do  with  a  statute,  interpreta- 

1See  p.  125,  ante. 

*  Billow,  Gesetz  und  Richteramt,  6,  7. 


STATUTES  173 

tion  of  statutes,  instead  of  being  one  of  the  most  difficult 
of  a  judge's  duties,  would  be  extremely  easy.  The  fact 
is  that  the  difficulties  of  so-called  interpretation  arise  when 
the  Legislature  has  had  no  meaning  at  all ;  when  the  ques- 
tion which  is  raised  on  the  statute  never  occurred  to  it; 
when  what  the  judges  have  to  do  is,  not  to  determine  what 
the  Legislature  did  mean  on  a  point  which  was  present  to 
its  mind,  but  to  guess  what  it  would  have  intended  on  a 
point  not  present  to  its  mind,  if  the  point  had  been  pres- 
ent. If  there  are  any  lawyers  among  those  who  honor  me 
with  their  attention,  let  them  consider  any  dozen  cases 
of  the  interpretation  of  statutes,  as  they  have  occurred 
consecutively  in  their  reading  or  practice,  and  they  will, 
I  venture  to  say,  find  that  in  almost  all  of  them  it  is 
probable,  and  that  in  most  of  them  it  is  perfectly  evident, 
that  the  makers  of  the  statutes  had  no  real  intention,  one 
way  or  another,  on  the  point  in  question;  that  if  they 
had,  they  would  have  made  their  meaning  clear ;  and  that 
when  the  judges  are  professing  to  declare  what  the  Leg- 
islature meant,  they  are  in  truth,  themselves  legislating 
to  fill  up  casus  omissi.1  Rules  of 

T  i          f   •    •  ••  .    j    construe- 

In  statutes  any  rules  of  interpretation  ever  suggested  tion  for 

u          t          ~e  A  i      u  j    j.i.  deeds  a11* 

have  been  of  the  most  general  character,  and  the  same  wins 

1"The  intent  of  the  Legislature  is  sometimes  little  more  than  a 
useful  legal  fiction,  save  as  it  describes  in  a  general  way  certain 
outstanding  purposes  which  no  one  disputes,  but  which  are  fre- 
quently of  little  aid  in  dealing  with  the  precise  'points  presented 
in  litigation.  Moreover,  legislative  ambiguity  may  at  times  not  be 
wholly  unintentional.  It  is  not  to  be  forgotten  that  important 
legislation  sometimes  shows  the  effect  of  compromises  which  have 
been  induced  by  exigencies  in  its  progress,  and  phrases  with  a  con- 
venient vagueness  are  referred  to  the  courts  for  appropriate  defi- 
nition, each  group  interested  in  the  measure  claiming  that  the  lan- 
guage adopted  embodies  its  views."  Mr.  Justice  Hughes,  in  1 
Mass.  Law  Quart.  (No.  2),  pp.  13,  15.  On  the  point  that  the  legis- 
lature sometimes  deliberately  leaves  its  intention  doubtful,  see  Sir 
Courtenay  Ilbert,  Mechanics  of  Law  Making,  pp.  19-23. 


174    THE  NATURE  AND  SOURCES  OF  THE  LAW 

is  true  of  legal  writings  generally;  but  in  two  classes 
of  instruments,  deeds  of  real  estate  and  wills,  particularly 
the  latter,  the  limited  character  of  provisions,  probable 
or  possible,  causes  language  of  a  similar  nature  to  be 
often  employed,  and  thus  gives  opportunity  for  the  estab- 
lishment of  rules  of  construction. 

The  making  of  these  rules  was  at  one  time  carried  too 
far  in  the  Common  Law;  they  were  often  pushed  into 
such  refinement  that  they  lost  their  practical  value,  and, 
what  is  more,  they  sometimes  attributed  to  a  testator 
the  very  opposite  of  the  intention  which  he  was  likely  to 
have  had,  as  with  the  rule  that  the  words  "dying  without 
issue"  meant  an  indefinite  failure  of  issue.1  Against  this 
disposition  there  has  of  late  years  been  a  decided  reaction 
on  the  part  of  the  courts.  Judges  have  spoken  with  con- 
tempt of  the  mass  of  authorities  collected  in  Mr.  Jarman's 
bulky  treatise  on  Wills,  have  declared  that  the  mode  of 
dealing  with  one  man's  blunder  is  no  guide  as  to  the  mode 
of  dealing  with  another  man's  blunder,  and  especially  have 
said  that  each  will  is  to  be  determined  according  to  the 
intention  of  the  testator,  and  that  the  judicial  mind  should 
apply  itself  directly  to  that  problem,  and  not  trouble  itself 
with  rules  of  construction. 

And  yet  it  may  be  doubted  whether  the  pendulum  of 
judicial  theory  and  practice  has  not  swung  too  far  in  this 
direction.  It 'undoubtedly  sounds  very  prettily  to  say 
that  the  judge  should  carry  out  the  intention  of  the 
testator.  Doubtless  he  should ;  but  some  judges,  I  venture 
to  think,  have  been  unduly  influenced  by  taking  a  fiction 
as  if  it  were  a  fact.  As  is  said  above  with  reference  to 

*7.e.  a  failure  of  descendants  at  any  time,  even  long  after  the 
death  of  the  ancestor. 


STATUTES  175 

the  legislature,  when  a  testator  has  a  real  intention,  it 
is  not  once  in  a  hundred  times  that  he  fails  to  make 
his  meaning  clear.  For  instance,  if  a  testator  should 
have  present  to  his  mind  the  question  whether  a  legacy  to 
his  wife  was  to  be  in  lieu  of  dower,  it  is  almost  incredible 
that  he  should  not  make  what  he  wished  plain.  When 
the  judges  say  they  are  interpreting  the  intention  of  a 
testator,  what  they  are  doing,  ninety-nine  times  out  of  a 
hundred,  is  deciding  what  shall  be  done  with  his  property 
on  contingencies  which  he  did  not  have  in  contemplation. 
Now  for  cases  in  which  a  testator  has  not  provided,  it  may 
be  well  that  there  should  be  fixed  rules,  as  there  are  for 
descent  in  cases  of  intestacy. 

It  would  seem  that  the  first  question  a  judge  ought  to 
ask  with  regard  to  a  disputed  point  under  a  will  should  be : 
"Does  the  will  show  that  the  testator  had  considered  this 
point  and  had  any  actual  opinion  upon  it  ?"  If  this  ques- 
tion be  answered  in  the  affirmative,  then  there  is  no  doubt 
that  the  solution  of  the  testator's  intention  must  be  sought 
in  the  will.  But  in  the  vast  majority  of  cases  this  is  not 
what  has  happened.  What  the  judges  have  to  do  is,  in 
truth,  to  say  what  shall  be  done  where  the  testator  has 
had  no  real  intention;  the  practice  of  modern  judges 
to  which  I  have  alluded  is  to  guess  from  the  language 
used  in  the  particular  will  what  the  testator  would  have 
meant  had  he  had  any  meaning,  which  he  had  not;  the 
older  practice  was  to  look  for  an  established  rule  of  con- 
struction. In  the  modern  practice  the  reasoning  is  often 
of  the  most  inconclusive  character,  but  the  judges  have 
got  to  decide  the  case  somehow,  and  having  turned  their 
backs  upon  rules  of  construction,  have  to  catch  at  the 
slightest  straw  with  which  to  frame  a  guess. 


176          THE  NATURE  AND  SOURCES  OF  THE  LAW 

Take,  for  instance,  the  word  "heirs,"  so  often,  indeed 
almost  always,  put  into  a  will  to  fill  out  the  final  limita- 
tions. There  are  jurisdictions  where  no  counsel  dares  to 
advise  on  what  is  to  be  done  with  property  that  is  be- 
queathed to  "heirs."  The  judging  of  each  will  by  itself 
leads  necessarily  to  the  bringing  up  of  each  will  to  be 
judged,  and  is  responsible  for  a  great  deal  of  .family  dis- 
sension and  litigation. 

That  the  unsatisfactory  character  of  many  of  the  rules 
for  the  interpretation  of  wills  is  largely  responsible  for 
their  present  unpopularity  with  the  courts  cannot  be 
denied;  but  I  only  wish  to  point  out  that  what  many 
judges  are  setting  up  against  the  rules  of  construction  of 
wills  is,  not  their  opinion  of  what  testators  really  intended, 
but  their  guess  at  what  the  testators  would  have  intended 
if  they  had  thought  of  the  point  in  question,  which  they 
did  not,  a  guess  resting  often  upon  the  most  trifling  bal- 
ance of  considerations. 

Methods  of       The  process  by  which  a  judge  (or  indeed  any  person, 

i  ntcrprc  L£L~  m  i*»i 

tionof         lawyer  or  layman,  who  has  occasion  to  search  for  the 
statutes  J  J 

meaning  of  a  statute)    constructs  from  the  words  of  a 

statute-book  a  meaning  which  he  either  believes  to  be  that 
of  the  Legislature,  or  which  he  proposes  to  attribute  to 
it,  is  called  by  us  "Interpretation,"  by  the  Germans 
"Auslegung"* 

Interpretation  is  of  two  kinds,  grammatical  and  logical. 
(Savigny's  division  into  grammatical,  logical,  historical, 
and  systematic 2  has  not  been  generally  followed. )  Gram- 
matical interpretation  is  the  application  to  a  statute  of 

1 1  Savigny,  Heut.  rom.  Recht,  §  32. 
*Id.   §  33. 


STATUTES  177 

the  laws  of  speech;  logical  interpretation  calls  for  the 
comparison  of  the  statute  with  other  statutes  and  with  the 
whole  system  of  Law,  and  for  the  consideration  of  the 
time  and  circumstances  in  which  the  statute  was  passed.1 

It  is  sometimes  said  that  the  rules  of  interpretation 
applicable  to  statutes  are  in  no  way  different  from  those 
applicable  to  other  writings,-  and  this,  in  a  sense,  is  true, 
since  statutes,  like  all  writings,  are  intended  to  express 
in  language  the  thoughts  of  human  minds ;  but  the  state- 
ment needs  some  qualification,  for  a  difference  in  the  ap- 
plication of  the  rules  for  interpreting  different  writings 
must  arise  from  the  greater  precision,  definiteness,  and 
accuracy  with  which  a  writer  is  speaking  or  purporting 
to  speak;  and  so  the  rules  of  interpretation  for  an  Act 
of  Parliament  may  be  very  unsuitable  to  the  Mecanique 
Celeste  of  La  Place,  or  the  Apocalypse  of  St.  John,  or  the 
Frogs  of  Aristophanes.2 

The  dependence  of  the  statutes  upon  the  will  of  the 

*The  so-called  "legal  interpretation,"  as  has  been  often  remarked, 
is  no  interpretation  at  all.  It  contains  two  parts,  authentic  and 
usual  interpretation.  Authentic  interpretation  is  denning  the  mean- 
ing of  an  earlier  statute  by  a  later.  Usual  interpretation  is  the 
attaching  of  a  meaning  to  a  statute  by  usage,  or,  with  us,  more 
commonly,  by  a  judicial  precedent.  A  judge,  in  adopting  a  mean- 
ing for  a  statute  in  accordance  with  its  authentic  or  usual  inter- 
pretation, is  not  ascertaining  its  meaning  from  the  statute  itself, 
but  is  adopting  a  meaning  for  it  from  some  other  authority. 

JIt  may,  by  the  way,  be  observed  that  the  most  remarkable  re- 
sults of  attempting  to  apply  to  works  of  one  class  rules  of  inter- 
pretation adapted  for  those  of  a  totally  different  class  have  been, 
reached  in  the  domain  of  theology.  To  interpret  the  poems  and 
prophecies  of  Scripture  as  if  they  were  the  market  ordinances  of 
the  City  of  New  York,  to  deal  with  the  fourth  verse  of  the  one 
hundred  and  tenth  Psalm  of  David,  as  if  it  were  the  fourth  section 
of  the  one  hundred  and  tenth  chapter  of  the  17  &  18  Victoria,  has 

S reduced  marvels  of  ingenuity,  but  of  ingenuity  wofully  misplaced, 
n  the  other  hand  the  statement  often  met  with  that  "the  Bible 
must  be  interpreted  like  any  other  book"  is  based  upon  the  fallacy 
that  all  Sooks  are  to  be  interpreted  alike,  and  begs  the  question, 
"To  what  class  of  books  does  the  Bible  belong?" 


178          THE  NATURE  AND  SOURCES  OF  THE  LAW 

judges  for  their  effect  is  indicated  by  the  expression  often 
used,  that  interpretation  is  an  art  and  not  a  science;  that 
is,  that  the  meaning  is  derived  from  the  words  accord- 
ing to  the  feeling  of  the  judges,  and  not  by  any  exact 
and  foreknowable  processes  of  reasoning.  Undoubtedly 
rules  for  the  interpretation  of  statutes  have  been  some- 
times laid  down,  but  their  generality  shows  plainly  how 
much  is  left  to  the  opinion  and  judgment  of  the  court 
Thus  Savigny's  three  aids  to  interpretation  are:  First, 
the  consideration  of  the  law  as  a  whole;  Second,  the 
consideration  of  the  reasons  of  the  statutes;  Third,  the 
excellence  of  the  result  reached  by  a  particular  interpreta- 
tion.1 But  their  lack  of  precision  he  himself  notes,  say- 
ing that  the  application  of  the  second  rule  calls  for  much 
reserve,  and  that  the  third  must  be  kept  within  the  nar- 
rowest limits.2 
Rules  of  The  rules  of  the  Common  Law,  as  laid  down  in  Heydoris 

the  Common  ,  .  . ._  , 

Law  Case,    are  not  more  precise.       Jb  or  the  sure  and  true  in- 

terpretation of  all  statutes  in  general  (be  they  penal  or 
beneficial,  restrictive  or  enlarging  of  the  Common  Law) 
four  things  are  to  be  discerned  and  considered:  1st. 
What  was  the  Common  Law  before  the  making  of  the 
Act.  2nd.  What  was  the  mischief  and  defect  for  which 
the  Common  Law  did  not  provide.  3rd.  What  remedy  the 
Parliament  hath  resolved  and  appointed  to  cure  the  dis- 
ease of  the  Commonwealth..  And  4th.  The  true  reason  of 
the  remedy ;  and  then  the  office  of  all  the  judges  is  always 
to  make  such  construction  as  shall  suppress  the  mischief, 
and  advance  the  remedy,  and  to  suppress  subtle  inven* 

*1  Savigny,  Heut.  rom.  Recht,  §§  33-37. 
*See  1  Windscheid.  Pand.  §  21. 
*3  Co.  7  (1584). 


STATUTES  179 

tions  and  evasions  for  continuance  of  the  mischief,  and 
pro  private  commodo,  and  to  add  force  and  life  to  the  cure 
and  remedy,  according  to  the  true  intent  of  the  makers  of 
the  Act,  pro  bono  publico." 

Of  other  rules  of  the  Common  Law,  the  principal  seems 
to  be  that  penal  statutes  are  to  be  cpnstrued  strictly,  but 
this  merely  gives  a  turn  to  the  judicial  mind,  and  fur- 
nishes no  clear  rule  where  it  shall  go. 

Yet  some  bounds  on  the  power  of  interpretation  there 
must  be.  How  far  can  a  judge  go  ?  Windscheid  answers 
the  question  thus:  "However  clearly  interpretation  may 
recognize  the  real  thought  of  the  law-giver,  it  can  rec- 
ognize it  as  establishing  Law  only  under  the  supposition 
that  in  the  statement  given  by  the  legislator,  an  expression, 
if  not  a  complete  expression,  of  his  real  thought  can  be 
found.  Therefore  its  principal,  if  not  sole,  activity  will 
consist  in  quantitative  extension  and  limitation  of  the 
Statute."  1  Suppose,  for  instance,  in  a  country  where 
the  Common  Law  prevails,  that  a  statute  is  passed  pro- 
viding that  any  person  setting  fire  to  a  house  shall  be 
liable  to  a  certain  punishment,  no  court  would  so  con- 
strue that  statute  as  to  include  children  under  seven  years 
of  age,  and  yet  the  legislature  has  not  excluded  them,  it 
never  thought  about  them.  The  judge  is  clear  that  it 
would  have  excluded  them  had  it  thought  about  the  matter, 
and  so  he  attributes  to  it  the  actual  intention  to  exclude 
them. 

Plenty  of  instances  where  statutes  have  been  so  inter- 
preted can  be  found  at  the  Common  Law;  the  instance 
which  I  have  given  was  of  a  limiting  interpretation ;  here 
is  an  instance  of  an  extensive  one.  Originally  the  right 
*1  Windscheid,  Pand.  §  22. 


180          THE  NATURE  AND  SOURCES  OF  THE  LAW 

to  recover  for  a  wrong  did  not  generally  survive  the  death 
of  the  person  entitled  to  recover,  but  the  St.  4  Edw.  III. 
(1330),  c.  7,  reciting  that  "in  times  past  executors  have 
not  had  actions  for  a  trespass  done  to  their  testators,  as 
of  the  goods  and  chattels  of  the  same  testators  carried 
away  in  their  life,"  enacted  "that  the  executors  in  such 
cases  shall  have  an  action  against  the  trespassers."  Under 
this  statute  the  English  courts  have  held  that  the  survival 
is  not  confined  to  cases  where  executors  sue  trespassers 
who  have  carried  away  the  goods  of  testators  in  the  life- 
time of  the  latter,  but  extends  to  suits  by  administrators  ; 
to  actions  for  the  misappropriation  of  goods  ;  to  an  action 
against  a  sheriff  for  making  a  false  return  on  legal  process  ; 
to  an  action  for  wrongful  disposition  by  an  executor,  or 
for  removing  goods  taken  on  legal  process  before  the  testa- 
tor, who  was  the  debtor's  landlord,  had  been  paid  a  year's 
rent.1  And  the  Court  of  King's  Bench  were  equally  di- 
vided on  the  question  whether  it  did  not  extend  to  an 
action  against  a  bailiff  for  allowing  the  escape  of  one 
arrested  on  preliminary  legal  process.2 

But,  on  the  other  hand,  it  has  been  said  over  and  over 
again,  both  in  the  Civil  and  in  the  Common  Law,  that 
the  courts  must  not  undertake  to  make  the  legislature 
say  what  it  has  not  said.  Is  not  the  true  rule  that  the 
judge  should  give  to  the  words  of  a  statute  the  meaning 
which  they  would  have  had,  if  he  had  used  them  himself, 
unless  there  be  something  in  the  circumstances  which 
makes  him  believe  that  such  was  not  the  actual  meaning 


Interpreta-      £    ,      i      •  i   ,         o 

tton  of  the    oi  the  legislature  5 


~" 

The  most  remarkable  instance  of  the  groWSL  or  Law 

*1  Wms.  Saund.  217. 

*See  Le  Mason  v.  Dixon,  W.  Jones,  173. 


STATUTES  181 

by  interpretation  of  statutes  is  to  be  found  in  the  Roman 
Law.  The  Twelve  Tables  l  formed  in  theory  the  founda- 
tion of  the  Law,  but  they  were  so  extended,  limited,  and 
altered  by  interpretatio,  that  they  retained  but  little  of 
their  original  force.  "A  formal  setting  aside  of  the  Law 
of  the  Twelve  Tables  (as  statute)  by  an  altering  cus- 
tomary law  must  have  appeared  inconceivable  to  a  Roman 
of  that  time.  Down  to  the  end  of  the  Roman  legal  devel- 
opment, down  to  the  Corpus  Juris  Civilis  of  Justinian, 
that  is,  for  a  whole  thousand  years,  when  finally,  for 
already  a  long  period,  no  stone  of  the  Law  of  the  Twelve 
Tables  stood  upon  another,  yet  in  theory  the  legal  author- 
ity of  the  Twelve  Tables  was  still  the  source  of  the  col- 
lected Roman  Law.  This  corresponded  to  the  conserva- 
tive, and  in  all  legal  matters,  far-seeing  judgment  of  the 
Romans.  !NTo  letter  of  the  Twelve  Tables  was  to  be  altered, 
and  yet  it  was  possible  to  read  a  new  spirit  into  the  old 
letters.  After  the  completion  of  the  legislation  of  the 
Twelve  Tables,  the  questions  dealt  with  were  of  an  'inter- 
pretatio' which  developed,  yes,  changed  the  Law,  while  it 
left  the  letters  of  the  Law  undisturbed."  2 

Perhaps  the  best  way  to  illustrate  how  much  statutes  Power  of 

J  m  courts  over 

are  at  the  mercy  of  the  courts  is  to  take  some  one  statute,  statutes 

and  to  see  how  different  courts  have  attributed  to  the 
legislature  entirely  different  meanings,  so  that  the  people 
of  different  communities  are  living  under  totally  different 
Law,  although  there  be  the  same  enactments  on  their  re- 
spective statute-books.  Let  us  select  the  Statute  of  Frauds, 
an  Act  which  requires  certain  transactions  to  be  in  writ- 

*See  p.  31,  ante. 

"Sohrn,  Inst.   §    11.     See  2  Ihering,  Geist   des  rom.   Rechts,  461 
et  aeq. 


182          THE  NATURE  AND  SOURCES  OF  THE  LAW 

ing,  and  of  this  only  one  section,  the  fourth,  which  has 
generally  been  reenacted  in  much  the  same  terms  in  the 
several  United  States. 

The  section  is  as  follows :  "No  action  shall  be  brought 
(1)  whereby  to  charge  any  executor  or  administrator 
upon  any  special  promise  to  answer  damages  out  of  his 
own  estate;  or  (2)  whereby  to  charge  the  defendant  upon 
any  special  promise  to  answer  for  the  debt,  default,  or  mis- 
carriages of  another  person;  or  (3)  to  charge  any  person 
upon  any  agreement  made  upon  consideration  of  marriage ; 
or  (4)  upon  any  contract  or  sale  of  land,  tenements,  or 
hereditaments,  or  any  interest  in  or  concerning  them;  or 
(5)  upon  any  agreement  that  is  not  to  be  performed  within 
the  space  of  one  year  from  the  making  thereof;  unless 
the  agreement  upon  which  such  action  shall  be  brought, 
or  some  memorandum  or  note  thereof,  shall  be  in  writing 
and  signed  by  the  party  to  be  charged  therewith,  or  by 
some  person  thereunto  by  him  lawfully  authorized."  * 

In  some  jurisdictions  the  courts  interpret  "a  special 
promise  to  answer  for  the  debt,  default,  or  miscarriage 
of  another  person"  as  including  a  promise  by  A.  to  B. 
to  indemnify  the  latter  for  becoming  surety  to  C.  In 
other  jurisdictions  the  courts  put  the  contrary  construction 
on  the  provision.  Again,  some  courts  interpret  this  clause 
as  covering  an  indorsement  of  a  note  before  delivery  by 
one  not  a  party  thereto.  Others  hold  the  other  way. 
Some  courts  again,  interpret  "land"  as  including  a  crop 
of  growing  grass;  others  do  not.  Some  courts,  further, 
interpret  contracts  "not  to  be  performed  within  a  year" 
as  contracts  either  side  of  which  cannot  be  performed  in  a 
year,  while  others  construe  the  words  as  meaning  contracts 

'29  Car.  II,  c.  3,  sec.  4. 


STATUTES  183 

of  which  the  part  to  be  performed  by  the  defendant  cannot 
be  performed  within  a  year ;  and,  so  again,  a  memorandum 
in  writing  of  an  agreement  is  interpreted  by  some  courts 
as  meaning  a  memorandum  containing  not  merely  the 
promise  but  the  consideration,  while  others  interpret  it  as 
meaning  a  memorandum  containing  the  promise  only.1 

One  more  case  to  illustrate  the  power  of  the  courts. 
In  Maine  and  Massachusetts  there  is  a  statute  requiring 
three  competent  witnesses  to  a  will,  and  providing  that 
any  legacy  to  a  witness  shall  be  void.  In  each  State  arose 
a  case  where  a  will  containing  a  gift  to  a  man  had  been 
witnessed  by  his  wife.  The  Maine  Supreme  Judicial 
Court  interpreted  the  statute  extensively,  and  held  the 
legacy  bad  and  the  will  good,  while  the  Supreme  Judicial 
Court  in  Massachusetts,  interpreting  the  statute  strictly, 
held  the  whole  will  bad.2 

One  thing,  however,  is  clear, — when  legislation  is  rare,  when 
and  can  be  procured  with  difficulty,  the  iudsres  will  allow  is  difficult. 

.  •'  J  interpreta- 

themselves  a  freedom  in  interpreting  statutes  which  they  tionisfree 
will  not  exercise  when  any  ambiguous  or  defective  statute 
can  be  easily  remodelled  by  the  Legislature.  The  history 
of  the  Law  shows  this  to  be  so,  and  it  is  perhaps  well 
that  it  should  be  so;  but  for  this  reason  the  practice  of 
the  courts,  when  legislation  is  difficult,  will  form  an 
imperfect  index  of  what  is  or  ought  to  be  their  practice 
when  legislation  is  readily  attainable. 

Perhaps  the  most  striking  instance  in  modern  times 

1  Within  a  single  jurisdiction,  e.g.  England,  this  section  of  the 
Statute  of  Frauds,  and  many  other  statutory  enactments,  "have 
been  the  subject  of  so  much  judicial  interpretation  as  to  derive 
nearly  all  their  real  significance  from  the  sense  put  upon  them  by 
the  Courts."  Dicey,  Law  &  Opinion,  2d  ed.,  p.  362. 

1  Winslow  v.  Kimhall,  25  Maine,  493 ;  Sullivan  v.  Sullivan,  106 
Mass.  474. 


184          THE  NATURE  AND  SOURCES  OF  THE  LAW 

of  the  freedom  of  interpretation  exercised  by  a  court  to 
modify  legislation  which  could  be  altered  only  with  great 
difficulty, — indeed  the  last  modern  instance  of  a  fiction 
which,  in  its  barefaced  character,  seems  a  late  survival  of 
the  practice  of  the  early  Roman  prastors  * — is  the  doctrine 
of  the  Supreme  Court  of  the  United  States  on  the  right  of 
corporations  to  sue  in  the  Federal  Courts.  Had  the  ques- 
tion arisen  under  an  Act  of  Congress,  the  Court  would 
have  left  the  difficulty  which  was  felt  to  be  dealt  with  by 
Congress,  and  not  sought  to  mend  an  inconvenient  state 
of  affairs  by  a  fiction;  but  the  question  arose  under  the 
Constitution,  which  could  be  altered  only  with  great 
trouble  and  elaborate  machinery.  The  action  of  the  Su- 
preme Court  furnishes  an  excellent  example  of  the  extent 
to  which  courts  will  go  when  they  despair  of  the  amend- 
ment of  defective  legislation. 

The  history  of  the  matter  is  this:  The  Constitution 
provides  that  the  judicial  power  of  the  United  States 
"shall  extend  ...  to  controversies  between  citizens  of 
different  States,"  and  under  the  statutes  passed  to  give 
effect  to  this  provision,  it  has  been,  from  early  times,  uni- 
formly held  that  if  there  are  citizens  of  the  same  State 
on  opposite  sides  of  a  controversy,  the  jurisdiction  of 
the  Federal  courts  on  the  ground  of  citizenship  is  ousted.2 
And  it  has  also  been  held  that  a  corporation  is  not  a  citi- 
zen of  any  State  so  as  to  be  entitled  to  the  privileges  of 
citizenship.3 

1See  p.  31,  ante. 

'  Strawbridge  v.  Cwtiss,  3  Or.  267  (1806);  Smyth  v.  Lyon,  133 
U.  S.  315  (1890). 

*Bank  of  Augusta  v.  Earle,  13  Pet.  519  (1839)  ;  Paul  v.  Virginia, 
8  Wall.  168  (1868). 


STATUTES  185 

In  Hope  Insurance  Co.  v.  Boardman,1  it  was  held  that 
a  plaintiff  described  as  a  company  incorporated  by  a  State 
could  not  sue  the  citizens  of  another  State  under  the 
clause  in  question,  the  plaintiff  not  being  a  citizen  of  any 
State.  But  this  was  followed  in  the  same  year  by  Bank 
of  the  United  States  v.  Deveaux?  in  which  the  Supreme 
Court  decided  that  a  petition  by  a  corporation  established 
by  the  United  States  which  averred  that  the  petitioners 
were  citizens  of  Pennsylvania  could  be  maintained  in  a 
Federal  Court  against  citizens  of  Georgia.  That  is,  the 
Court  extended  the  meaning  of  citizen  of  a  State  in  this 
clause  to  a  corporation  all  of  whose  members  were  citizens 
of  that  State. 

This  was  going  a  good  way,  but  the  court  has  gone 
much  further,  and  now  holds  that  the  stockholders  of  a 
corporation  will,  for  the  purposes  of  jurisdiction,  be  con- 
clusively presumed  to  be  all  citizens  of  that  State  by  which 
the  corporation  was  established,  no  evidence  to  the  contrary 
being  admissible. 

This  ruling  leads  to  most  extraordinary  results.  The 
Federal  courts  take  cognizance  of  a  suit  by  a  stockholder 
who  is  a  citizen,  say,  of  Kentucky,  against  the  corporation 
in  which  he  owns  stock,  which  has  been  incorporated,  say, 
by  Ohio.  Since  he  is  a  stockholder  of  an  Ohio  corpora- 
tion, the  court  conclusively  presumes  that  he  is  a  citizen 
of  Ohio,  but  if  he  were  a  citizen  of  Ohio,  he  could  not 
sue  an  Ohio  corporation  in  the  Federal  courts.  There- 
fore the  court  considers  that  he  is  and  he  is  not  at  the 
same  time  a  citizen  of  Ohio,  and  it  would  have  no  juris- 
diction unless  it  considered  that  he  both  was  and  was  not 

»5  Cr.  57    (1809). 
»/b.  61. 


186          THE  NATURE  AND  SOURCES  OF  THE  LAW 

at  the  same  time  a  citizen  both  of  Ohio  and  Kentucky.1 
The  special  character  of  a  particular  body  of  legislation 
will  sometimes  call  for  special  rules  of  interpretation. 
The  most  marked  instance  is  to  be  found  in  the  legisla- 
tion of  Justinian:  the  main  parts  of  this,  the  Digest  and 
the  Code,  are  composed  almost  entirely  of  what  was  orig- 
inally not  legislation;  the  Code  is  made  up  mainly  of 
rescripts  and  decrees  by  the  Emperors  in  particular  cases, 
while  the  Digest  contains  some  such  rescripts  and  decrees, 
but  is  composed  chiefly  of  extracts  from  the  writings  of 
jurists.  In  fact,  therefore,  to  interpret  rightly  a  passage 
in  the  Corpus  Juris,  it  is  necessary  first  to  consider  what 
it  meant  as  used  by  its  original  author,  and  then  how 
that  meaning  has  been  modified  by  reason  of  the  passage 
being  incorporated  into  the  Corpus,  where  it  has  to  be  con- 
sidered in  connection  with  other  passages  which  have  also 
been  appropriated  by  Justinian.2 

It  is  obvious  that  in  many  ways  a  body  of  legislation 
thus  made  up  must  have  its  own  rules  of  interpretation. 
For  instance,  when  a  statute  declares  that  written  in- 
struments shall  have  a  certain  effect  if  made  in  a  certain 
way,  the  argumentum  a  contrario,  that  instruments  not  so 
made  will  not  have  that  effect,  is  much  stronger  than  in 
the  case  of  a  judgment  in  which  it  has  been  declared  that 
an  instrument  so  made  shall  have  the  effect  in  question. 

Whenever  a  code  of  laws  is  published  and  put  forth 
as  one  new  thing,  it  is  to  be  interpreted  very  differently 
from  a  collection  of  statutes  which  is  merely  a  revision  and 
orderly  arrangement  of  statutes  already  existing.  Of  this 

1  Dodge  v.  Woolsey,  18  How.  331  (1855). 

»1  Windscheid,  Pand.  §  25;  1  Savigny,  Heut.  torn.  Recht,  §§  42- 
46- 


STATUTES  187 

latter  sort  are  many,  though  not  all,  of  the  collections  of 
statutes  in  the  several  States  of  the  Union,  and  in  them 
the  original  dates  and  context  of  the  separate  parts  will 
influence  the  mode  in  which  the  courts  construe  their 
provisions.  Any  one  familiar  with  the  revisions  of  the 
statutes  in  any  of  the  United  States  has  had  frequent 
proof  of  this.1 

The  legislature  can  repeal  a  statute;  it  can  pass  a  new 

r  interpreta- 

statute  saying  what  shall  be  the  meaning  of  an  old  statute  "on 

(although  the  new  statute  must  be  in  turn  interpreted 
by  the  courts),  and  it  can,  in  the  absence  of  any  Consti- 
tutional prohibition,  even  make  the  new  statute  retroac- 
tive; this  is  simply  an  instance  of  its  law-making  power; 
but  how  far  have  legislatures  undertaken  to  reserve  to 
themselves  the  power,  apart  from  new  legislation,  of  in- 
terpreting statutes,  a  power  which  is  ordinarily  confided 
to  the  judicial  organs  of  a  community  ? 

Justinian  forbade  any  commentaries  to  be  written  upon 
the  product  of  his  legislation  and  added:  "Si  quid  vero 
ambiguum  fuerit  visum,  hoc  ad  imperiale  cvlmen  per 
judices  referatur  et  ex  auctoritate  Augusta,  manifestetur, 
cui  soli  concessum  est  leges  et  condere  et  interpretari."* 
If  this  provision  was  ever  of  any  practical  force,  it  forms 
no  part  of  the  Roman  Law  as  received  in  the  modern 
world.3 

So  far  as  Sovereigns  during  the  Middle  Ages  inter- 

1See  an  article  by  H.  W.  Chaplin  on  Statutory  Revision,  3  Har- 
vard Law  Rev.  73. 

1  "But  if  anything  shall  seem  doubtful,  let  it  be  referred  by  the 
judges  to  the  Imperial  Throne  and  it  shall  be  made  plain  by  Im- 
perial authority,  to  which  alone  is  given  the  right  both  to  estab- 
lish and  to  interpret  laws."  Cod.  I,  17,  2,  21.  See  also  Cod.  I, 
14,  12. 

*  1  Vindscheid,  Pand.  §  25 ;   1  Savigny,  Heut.  rom.  Recht,  §  49. 


188          THE  NATURE  AND  SOURCES  OF  THE  LAW 

fered  with  the  decisions  of  the  courts  it  would  seem  to 
have  been  as  supreme  judges  rather  than  as  legislators 
interpreting  their  own  statutes.1 

In  countries  where  the  English  Common  Law  prevails, 
no  references  have  ever  been  made  by  judicial  tribunals 
to  legislatures  to  furnish  them  with  interpretations  of 
statutes.2  In  England  and  in  some  of  the  United  States, 
legislative  bodies  can  ask  the  opinion  of  the  judges  on 
the  interpretation  of  statutes  as  on  any  other  questions  of 
Law,  remaining  free  to  follow  or  not  to  follow  such  opin- 
ion, as  they  see  fit,  but  the  reverse  practice  does  not  exist.3 

The  Prussian  Code  at  one  time  directed  the  judges  to 
submit  their  doubts  on  the  interpretation  of  statutes  to  a 
legislative  commission,4  but  this  has  now  been  done  away 
with,  and  the  judges  have  full  and  exclusive  powers  of 
interpretation. 

It  is  in  France  that  the  idea  of  reserving  to  the  legisla- 
ture the  power  of  interpretation  has  been  most  developed. 
Its  history  is  interesting,  but  it  will  be  sufficient  to  say 

1  See  account  of  Henry  II  as  judge,  1  Pollock  &  Maitland,  Hist. 
of  Eng.  Law,  2d  ed.  156-160. 

2  But  see  Y.  B.  40  Edw.  3,  p.  34.     Thorpe,  C.  J.,  and  Green,  J., 
on  a  disputed  question  as  to  the  construction  of  a  recent  statute 
about  amending  pleadings,  went  "to  the  Council,  and  there  were 
24  bishops  and  earls,  and  we  asked  of  them  who  made  the  statute, 
if  the  record  could  be  amended."     In  the  middle  ages,  however,  the 
functions  of  Parliament  as  a  legislature  and  as  a  court  were  not 
clearly  distinguished,  so  that  such  applications  might  be  regarded 
as  being  made  to  a  higher  court.     See  also  Mcllwain,  High  Court 
of  Parliament,  115,  326;  Pike,  Constitutional  History  of  the  House 
of  Lords,  pp.  50  et  seq.;  2  State  Trials,  Case  of  the  Postnati,  p. 
675. 

3  Attorney-General  v.   Attorney-General,    [1912]    A.   C.   571;    and 
see  J.  B.  Thayer,  Legal  Essays,  42. 

«2  Austin,  Jur.    (4th  ed.),  659,  681;   Prussian  Landrecht,   1794, 
§§  47,  48. 


STATUTES  189 

here  that,  at  present,  the  legislature  is  not  charged  with 
this  judicial  function.1 

A  statute  once  enacted  continues  to  be  a  source  of  law  Desuetud» 
•i  .  i      r*          •  i»  of  statute* 

until  it  comes  to  an  end.  Sometimes  a  statute  itself  pro- 
vides that  it  shall  be  in  force  for  only  a  limited  time.  But 
the  usual  way  in  which  a  statute  ceases  to  be  a  source  of 
Law  is  its  repeal  by  the  legislature  which  enacted  it  or  by 
a  legislature  of  higher  powers.  A  legislature  cannot  bind 
subsequent  legislatures,  and  therefore  cannot  pass  an  ir- 
repealable  statute.  This  is  true  of  a  supreme  legislative 
body  having  an  unlimited  power  of  enacting  statutes,  but 
to  an  inferior  legislative  body  may  be  delegated  the  power 
of  making  ordinances  once  for  all,  and  when  it  has  made 
them,  it  may  be  functum  officio;  and  from  the  circum- 
stance that  the  legislatures  of  the  several  States  in  the 
United  States  are  limited  by  the  Constitution  of  the 
United  States  has  arisen  another  interesting  class  of 
statutes  which  the  legislatures  that  passed  them  cannot 
repeal.  That  has  come  about  in  this  way.  The  Constitu- 
tion of  the  United  States  prohibits  a  State  from  passing 
any  law  impairing  the  obligation  of  contracts,  and  the 
prohibition  was  interpreted  in  the  Dartmouth  College 
Case 2  to  cover  not  only  executory  contracts,  but  also 
grants,  and  therefore  statutes  of  a  State  which  are  grants 
cannot  be  repealed  by  a  subsequent  legislature  of  that 
State.  The  statutes  which  have  in  this  way  become  ir- 
repealable  are  mainly  those  which  have  granted  certain 
privileges,  such  as  exemption  from  taxation,  to  corpora- 
tions. 

1 1  Laurent,  Principes  du  droit  civil,  §§  254-256;   1  Planiol,  Traite 
glementaire,  §§  208-214. 
*4  Wheat.  518. 


190          THE  NATURE  AND  SOURCES  OF  THE  LAW 

The  Civilians  base  their  doctrine  as  to  abrogation 
by  desuetude  upon  a  passage  of  the  jurist  Julianus,  who 
flourished  in  the  first  half  of  the  second  century,  which 
is  taken  up  into  the  Digest.1  "Inveterata  consuetude  pro 
lege  non  immerito  custoditur,  et  hoc  est  ius  quod  dicitur 
moribus  constitutum.  Nam  cum  ipsce  leges  nulla  alia  ex 
causa  nos  teneant  quam  quod  judicio  populi  receptce  surd, 
merito  et  ea,  quce  sine  ullo  scripto  populus  probavit,  ten* 
uerunt  onwies;  nam  quid  interest  suffragio  populus  vol~ 
untatem  suam  declaret  an  rebus  ipsis  et  factis?  Quare 
rectissime  etiam  illud  receptum  est,  ut  leges  non  solum 
suffragio  legislatoris,  sed  etiam  tacito  consensu  omnium 
per  desuetudinem  abrogentur"  ;2  and  there  are  other  pas- 
sages in  the  Corpus  Juris  which  seem  to  be  to  the  same 
effect.3  On  the  other  hand,  a  rescript  of  Constantine 
(A.D.  319),  to  be  found  in  the  Code,  reads  as  follows: 
"Consuetudinis  ususque  longcevi  non  vilis  auctoritas  est, 
verum  non  usque  adeo  sui  valitura  momento,  ut  aut 
rationem  vincat  aut  legem."  4 

On  the  attempted  reconcilement  of  these  passages,  and 
on  the  existence  and  extent  of  the  doctrine  that  statutes 
may  be  abrogated  by  disuse,  there  is  a  whole  literature. 

*D.  I,  3,  32,  1. 

1  "Long  continued  custom  is  not  improperly  regarded  as  equiva- 
lent to  a  statute,  and  what  is  pronounced  to  be  established  by  usage 
is  law.  For  since  the  statutes  themselves  are  binding  on  us  for 
no  other  reason  than  that  they  are  accepted  by  the  people,  it  is 
proper  also  that  what  the  people  have  approved  without  any  writ- 
ing shall  bind  everyone;  for  what  difference  is  there  whether  the 
people  declares  its  will  by  a  vote  or  by  its  Very  acts  and  deeds? 
Wherefore  very  rightly  this  also  is  held,  that  statutes  may  be  abro- 
gated not  only  by  a  vote  of  the  legislator,  but  also  by  desuetude 
with  the  tacit  consent  of  all." 

"Inst.  IV,  4,  7;  Cod.  I,  17,  1,  10;  Cod.  VI,  51,  1,  1. 

4  "Custom  and  long  usage  have  no  slight  weight,  but  not  so  great 
that  they  will  prevail  of  themselves,  or  overcome  either  reason  or  j 
statute."  Cod.  VIII,  52  (53),  2. 


STATUTES  191 

Placentinus1  taught  that  statutes  could  no  longer  be  abro- 
gated by  disuse.  But  he  has  found  few  followers  among 
the  civilians.  Of  the  divers  theories  held  as  to  Con- 
stantine's  rescript  by  those  who  allow  that  statutes  may 
be  abrogated  by  desuetude,  Guyet  2  enumerates  fourteen 
of  the  "weightiest,"  besides  his  own. 

One  of  these  theories  is  that  the  doctrine  of  abrogation 
by  desuetude  should  be  confined  to  those  statutes  which 
provide  what  is  to  be  done  in  transactions  where  the 
parties  have  expressed  no  will  of  their  own  (Dispositiv- 
gesetze),  and  ought  not  to  be  extended  to  statutes  which 
positively  forbid  or  order  certain  acts.  Thus,  a  statute 
directing  that,  in  the  absence  of  agreement,  six  per  cent 
shall  be  the  legal  rate  of  interest  can  be  abrogated  by  dis- 
use, but  a  statute  forbidding  that  more  than  six  per  cent 
shall  be  taken,  cannot.3  But  this  limitation  of  the  power 
of  abrogation  by  desuetude  to  the  case  of  Dispositivgesetze 
has  not  met  with  general  approval.4 

Abrogation  by  desuetude  is  not  merely  a  doctrine  of  the 
schools,  but  has  been  applied  in  practice  in  modern  times. 
Thus,  the  following  case  was  decided  in  the  Court  of  Ap- 
peals at  Darmstadt  in  1827.  The  defendant  had  alleged 
that  the  provision  of  the  statute  Law  (the  Land  Law  of 
the  Upper  County  of  Katzenelnbogen)  in  relation  to  the 
formalities  of  a  will  had  undergone  modification  through 

*In  his  gloss  to  Cod.  VIII,  52  (53),  2,  just  quoted.  See  2 
Puchta,  Gewonheitsrecht,  204. 

*In  an  article  on  Das  particulare  Gevoonheitsreoht,  in  35  Arch, 
fiir  civ.  Pr.  12,  23-25. 

3Seuffert,  11  Arch,  fiir  civ.  Pr.  357. 

*  See  2  Puchta,  Gewonheitsrecht,  208,  209;  Busch,  27  Arch,  fur 
civ.  Pr.  197.  On  the  question  of  desuetude,  see  also  Windscheid, 
Pand.  §  18;  2  Puchta,  Gewonheitsrecht,  203-215;  1  Savigny,  Heut. 
rom.  Recht,  §  25;  Id.  Beylage  2,  in  1  Heut.  rom.  R.,  p.  420;  Ges- 
terding,  3  Arch,  fiir  civ.  Pr.  259. 


192           THE  NATURE  AND  SOURCES  OF  THE  LAW 

customary  Law.  When  the  question  came  before  the 
Court  of  Appeals,  that  tribunal  held  that  the  defendant 
should  be  allowed  to  prove  the  superiority  of  the  cus- 
tomary Law  which  derogated  from  the  provisions  of  the 
Land  Law,  for  that  through  usage  a  positive  statute  could 
be  abrogated  or  modified,  and  that  this  was  good  even  in 
reference  to  the  formalities  for  making  wills.1 

The  practical  use  of  a  formal  doctrine  allowing  the 
abrogation  of  statutes  by  desuetude  is  likely  to  be  greatly 
limited  by  the  freedom  which  the  courts  permit  them- 
selves to  exercise  in  interpretation.  It  is  not  as  speedy 
or  as  simple  a  process  to  interpret  a  statute  out  of  ex- 
istence as  to  repeal  it,  but  with  time  and  patient  skill  it 
can  often  be  done.  And  the  desire  not  to  seem  to  disturb 
ancient  landmarks  has  often  occasioned  a  resort  to  "inter- 
pretation" rather  than  to  a  repeal  to  get  rid  of  the  weight 
of  a  statute  which  has  become  burdensome.  Particularly 
was  this  the  case  in  Rome.  Referring  again  to  the  pas- 
sage from  Sohm,2  a  formal  repeal  of  the  Law  of  the  Twelve 
Tables  by  customary  Law  would  have  appeared  inconceiv- 
able to  a  Roman,  and  when  for  a  long  period  no  stone  of 
the  Law  of  the  Twelve  Tables  had  stood  upon  another,  still, 
in  theory,  that  legislation  was  regarded  as  the  source  of 
the  collected  Roman  Law.3 

Another  circumstance  which  affects  the  practical  em- 
ployment of  the  doctrine  of  desuetude  is  the  comparative 
ease  of  obtaining  new  legislation;  when  the  legislative 
organ  of  a  community  is  with  difficulty  called  into  action, 

1 9  Seuffert,  Arch.  Nr.  3 ;  see  also  40  Seuffert,  Arch.  Nr.  269. 

*  Cited  p.  181,  ante. 

•But  see  Inst.  IV,  4,  7,  which  seems  to  recognize  that  a  pro- 
vision of  the  Law  of  the  Twelve  Tables  could  be  abrogated  by 
desuetude. 


STATUTES  193 

the  courts  are  pretty  certain,  whatever  legal  texts  may 
say,  to  exercise  the  power  of  either  interpreting  statutes 
out  of  existence,  or  else  of  holding  that  they  may  be 
abrogated  by  desuetude.  But  when  new  legislation  can 
be  easily  obtained,  there  is  little  occasion  to  apply  the 
doctrine  of  desuetude.1 

Many  of  the  German  Codes  provide  that  no  customary 
law  shall  prevail  against  them.  But  some  of  the  Ger- 
man jurists  go  so  far  as  to  declare  that  an  express  pro- 
vision in  a  statute  that  it  should  not  be  abrogated  by  any 
customary  law  would  be  null  and  only  empty  words.2 
Windscheid,  while  condemning  this  view,  adopts  one  which 
leads  to  the  same  result.  He  says  that  if  a  statute  denies 
derogatory  power  to  customary  law,  that  provision  of  the 
statute  is  valid,  and  that,  as  long  as  the  statute  is  in  force, 
it  must  prevail  against  customary  law,  but  that,  notwith- 
standing, the  statute  itself  may  be  derogated  from  by 
customary  law.3 

In  France,  the  prevailing  opinion  is  that  statutes  can- 
not be  abrogated  by  desuetude.4 

In  Scotland  statutes  may  fall  into  desuetude.5 

The  doctrine  of  the  English  Common  Law  is  that  a  Desuetude 

0  of  statutes: 

statute  can  be  abrogated  only  by  an  express  or  implied  Common 
repeal,  that  it  cannot  be  done  away  with  by  any  custom 
or  usage,  that  it  cannot  fall  into  desuetude. 

'See  p.   183,  ante. 

'See  Zoll,  13  Jahrb.  f.  Dogm.  416  (1874)  ;  Maurer,  14  Krit.  Vier- 
teljahrsschr.  49  (1872);  Eisele,  69  Archiv.  f.  civ.  Pr.  275  (1886); 
Wendt,  22  Jahrb.  f.  Dogm.  324  (1884). 

•1  Windscheid,  Pand.  (9th  ed.)  §  18,  note  3.  See  Riimelin,  27 
Jahrb.  f.  Dogm.  225  (1889);  1  Stobbe,  Handbuch,  §  23. 

*1  Aubry  and  Rau  Cours  de  Droit,  §  29.  See  18  Merlin,  Rep. 
"Usage,"  255  et  seq.;  1  Merlin,  Quest,  de  Droit,  "Societe,"  §  1. 

*Erskine,  Principles   (21st  ed.)   p.  7. 


194          THE  NATURE  AND  SOURCES  OF  THE  LAW 

To  the  rule  that  a  statute  cannot  fall  into  desuetude, 
Lord  Coke  seems  to  allege  an  exception.  HEs  words  l  are, 
"If  a  statute  in  the  negative  be  declarative  of  the  ancient 
law,  that  is,  in  affirmance  of  the  common  law,  there  as  well 
as  a  man  may  prescribe  or  allege  a  custom  against  the 
common  law,  so  a  man  may  do  against  such  a  statute"; 
and  Mr.  Hargrave  2  approves  the  rule  that  one  may  pre- 
scribe or  allege  a  custom  against  a  statute  declaratory  of 
the  Common  Law.  But  the  truth  seems  to  be  that  there 
are  no  statutes  having  force  as  such  which  are  older 
than  the  time  of  legal  memory,3  and  that,  therefore,  all 
rights  acquired  by  prescription  or  custom  are  to  be  con- 
sidered as  existing  before  any  statutes  were  enacted.  So 
that  the  question  is  this :  Is  a  custom  or  prescription  con- 
trary to  the  Common  Law  put  an  end  to  by  a  statute 
confirmatory  of  the  Common  Law  passed  subsequently  to 
the  establishment  of  the  custom  or  prescription?  In 
other  words,  the  question  is  not  of  the  effect  of  prescrip- 
tion or  custom  on  a  statute,  but  of  the  effect  of  a  statute 
upon  an  existing  prescriptive  or  customary  right,  which 
is  merely  a  question  of  interpretation,  and  does  not  con- 
cern us  here. 

The  theory  that  a  statute  cannot  fall  out  of  use  is  un- 
doubtedly accepted  law  in  England  to-day,  and  the  ease 
with  which  legislation  can  now  be  obtained  renders  the 
maintenance  of  such  a  theory  easy.  But  it  is  not  per- 
fectly clear  that  the  doctrine  was  always  held  with  great 
rigidity.  St.  15  Hen.  VI.  c.  4  is  to  the  effect  that  "no 

^o.  Lit.  115  a. 

3  In  his  note  to  this  passage  of  Coke's. 

8  See  Hale,  Hist.  Com.  Law,  c.  1.  The  time  of  legal  memory  begins 
with  the  commencement  of  the  reign  of  Richard  I,  1189.  See  2  Bl. 
Com.  31. 


STATUTES  195 

writ  of  subpoena  be  granted  from  henceforth  until  surety 
be  found  to  satisfy  the  party  so  grieved  and  vexed  for  his 
damages  and  expenses."  This  statute  was,  after  a  time, 
totally  disregarded  in  the  Chancery.1  It  may  be  observed 
that  this  statute  was  passed  to  diminish  recourse  to 
Chancery,  and  must  have  been  disliked  by  the  officers  of 
that  court,  and  that  if  the  Chancellor  disregarded  the 
statute,  he  could  not  be  proceeded  against  at  Common  Law 
either  by  mandamus  or  prohibition.  It  may  also  be  noted 
that  the  statute  is  not  in  any  of  the  exemplifications 
formerly  preserved  at  the  Tower  of  the  lost  statute  roll  of 
this  year.2 

The  St.  of  1  Hen.  V.  c.  1,  requiring  candidates  for 
Parliament  to  be  resident  within  the  counties,  cities,  or 
boroughs  from  which  they  are  chosen,  and  other  statutes 
in  the  following  reign  in  pari  materia,3  were  not  followed 
by  the  House  of  Commons;  and  in  1774,  the  St.  of  14 
Geo.  III.  c.  58,  after  reciting  that  "several  provisions 
contained  in  the  said  Acts  have  been  found,  by  long  usage, 
to  be  unnecessary,  and  are  become  obsolete,"  enacted  that, 
in  order  "to  obviate  all  doubts  that  may  arise  upon  the 
same,"  the  said  Acts  are  repealed.  It  should  be  observed 
that  most  of  the  acts  forbidden  by  these  statutes  could 
be  taken  cognizance  of  only  by  the  House  of  Commons, 
and  therefore  would  escape  the  supervision  of  the  regular 
courts. 

Near  the  beginning  of  the  seventeenth  century  (1617), 
Ferdinando  Pulton  published  a  calendar  abridgment  of 
the  Statutes,  in  which  he  marked  by  the  letters  "OB" 

*1  Harrison,  Prac.  Ch.  (8th  ed.)  157. 

3  2  Sts.  of  the  Realm  (ed.  1816)  296,  note. 

8Sts.  8  Hen.  VI.  c.  7;  10  Hen.  VI.  c.  2;  23  Hen.  VI.  c.  14. 


196          THE  NATURE  AND  SOURCES  OF  THE  LAW 

every  statute  which  was  "dbsoletwn,  that  is,  worn  out  of 
use." 

The  St.  of  19  &  20  Viet.  c.  64  (1856)  is  entitled  "An 
act  to  repeal  certain  statutes  which  are  not  in  use."  It 
repeals  one  hundred  and  eighteen  Acts,  and  it  is  to  be  ob- 
served that  it  is  only  in  the  preamble  that  it  speaks  of  the 
statutes  not  being  in  use.1 

The  English  statute  book  has  undergone  a  pretty 
thorough  purging  from  Acts  applicable  only  to  a  state 
of  things  which  has  passed  away.  For  instance,  between 
the  Kestoration  of  1660  and  the  Revolution  of  1689  there 
were  passed  two  hundred  and  seventeen  statutes  (omit- 
ting the  private,  personal,  and  local) .  Of  these,  one  hun- 
dred and  seventy-five  have  been  expressly  and  totally 
repealed,  and  doubtless  the  judges  would  be  astute  in 
searching  for,  and  successful  in  finding,  implied  repeals 
of  other  statutes  that  they  did  not  like. 

English  The  position  among  the  English  colonists  in  what  is 

in  America  now  the  United  States  of  the  statutes  passed  by  the 
English  or  British  Parliament,  whether  before  or  after 
their  departure  from  the  mother  country,  presents  an  in- 
teresting question.  Undoubtedly  the  principles  embodied 
in  those  statutes  were  largely  applied  as  rules  by  the 
American  courts,  but  they  were  applied  not  as  commands 
of  the  English  or  British  Parliament,  for  no  Act  of 
Parliament  extended  to  the  colonies  unless  they  were 
expressly  mentioned,2  but  as  part  of  a  body  of  rules, 

'See  also  St.  26  &  27  Viet.  c.  125. 

'  Between  the  date  of  the  first  establishment  of  the  American  col- 
onies in  the  beginning  of  the  seventeenth  century  and  the  Revolution 
at  the  end  of  the  eighteenth,  the  statutes  passed  by  the  Parliament  of 
England  or  of  Great  Britain,  which  were  made  applicable  to  the 
colonies  or  any  of  them,  were  few  in  number. 


STATUTES  197 

known  as  the  Common  Law,  which  were,  in  fact,  applied 
by  the  English  courts,  and  which  the  courts  in  the  colonies 
took  over  from  them;  and  they  dealt  with  these  rules 
much  more  freely  than  they  would  have  felt  at  liberty 
to  do,  had  the  statutes  been  made  by  the  legislatures  of 
their  own  communities.  They  said  that  they  would  con- 
sider as  furnishing  rules  for  decision  only  those  English 
statutes  which  were  "suited  to  our  condition,"  a  phrase 
giving  them  a  wide  discretion,  of  which  they  did  not  hes- 
itate to  avail  themselves,  and  there  was,  therefore,  no  occa- 
sion to  consider  the  effect  of  desuetude  on  true  statutes.1 

In  South  Carolina,  indeed,  an  Act  of  the  General  As- 
sembly of  the  Province,  passed  in  1712,2  provided  that 
certain  Acts  of  Parliament,  set  forth  at  length,  should  be 
in  "as  full  force,  power  and  virtue  as  if  the  same  had  been 
specially  enacted  and  made  for  this  Province,  or  as  if  the 
same  had  been  made  and  enacted  therein  by  any  General 
Assembly  thereof."  But  in  no  other  colony  or  province 
was  there  a  local  reenactment  of  English  statutes. 

There  does  not  seem  often  to  have  come  up  any  ques-  Desuetude 
tion  of  the  desuetude  of  the  statutes  of  the  United  States  in  the 

United 

or  of  the  several  btates.  I  suppose  that  the  courts  would  states 
generally  follow  the  English  doctrine  that  a  statute  cannot 
be  abrogated  by  desuetude ;  but,  doubtless,  if  they  found  a 
statute  troublesome  as  a  "survival  of  the  unfittest,"  they 
could  do  much  to  get  rid  of  it  by  "interpretation,"  or  by 
declaring  it  the  victim  of  an  "implied  repeal."  The  only 
States  in  which  the  question  has  been  discussed  seem  to 
be  South  Carolina,  Pennsylvania,  Maryland,  and  Iowa.3 

1  See  article  by  Professor  Sioussat,  in  1  Select  Essays  in  Angle- 
Amer.  Leg.  Hist.  416. 

*2  Cooper,  Sts.  of  So.  Car.  p.  401. 
*  See  Appendix  V. 


CHAPTER  IX 

JUDICIAL    PRECEDENTS  * 

Precedents       THE  second  source  of  the  Law.  that  is,  of  the  rules 

in  general     •,,.-,,  -,.  .. 

by  which  the  courts  govern  their  action,  is  to  be  found 
in  Precedents.  Precedent  has  a  very  wide  meaning.  It 
covers  everything  said  or  done  which  furnishes  a  rule  for 
subsequent  practice,  especially  in  matters  of  form  or  cere- 
mony. Thus,  at  the  Lord  Mayor's  Election  Dinner,  it 
is  a  precedent  that  "upon  the  Lady  Mayoress  retiring 
from  the  dinner  table  the  senior  alderman  below  the  chair 
conducts  Her  Ladyship  to  the  drawing-room" ;  and  in 
the  Law,  "precedent"  is  often  used  to  mean  a  paper  em- 
ployed as  a  model  in  drawing  other  papers ;  thus,  we  have 
precedents  in  conveyancing  and  pleading;  but  the  prece- 
dents of  which  we  have  to  speak  here,  Judicial  Precedents, 
are  former  decisions  which  courts  respect  and  follow  be- 
cause made  by  judicial  tribunals. 

As  the  weight  attached  to  precedents  in  every  depart- 
ment of  life  is  closely  connected  with  the  force  of  habit, 
and  has  its  roots  deep  in  human  nature,  it  is  more  than 
probable  that  Judicial  Precedents  have  exercised  great  in- 
fluence in  all  systems  of  Law;  the  feeling  that  a  rule  is 
morally  right  has  often  arisen  from  the  fact  that  it  has 
long  been  followed  as  a  rule;  but  the  degree  in  which 

1  This  chapter  is  partly  taken  from  the  author's  article  in  9  Har- 
vard Law  Rev.  27,  which  contains  a  fuller  citation  of  cases  on  some 
points. 

198 


JUDICIAL  PRECEDENTS  199 

judicial  decisions  have  been  openly  recognized  as  authori- 
tative, simply  because  they  are  judicial  decisions,  has 
varied  very  greatly  in  different  systems.  Judges  are  every- 
where largely  influenced  by  what  has  been  done  by  them- 
selves or  their  predecessors,  but  the  theories  to  explain 
and  control  such  influence  have  been  diverse,  and  the  de- 
velopment of  the  Law  has  not  been  unaffected  by  them. 
Two  things  should  be  borne  in  mind.  In  the  first 
place,  the  functions  of  courts  are  not  in  practice  confined 
to  the  decision  of  particular  causes.  Either  by  authority 
expressly  delegated,  or  of  their  own  motion,  courts  have 
undertaken  to  legislate  with  regard  to  the  conduct  of  liti- 
gation before  themselves;  they  have  published  general 
rules,  in  the  form  of  command  or  permission,  setting 
forth  the  manner  in  which  they  will  proceed.  The  most 
striking  example  is  the  Edict  of  the  Roman  praetor,  which 
became  a  chief  instrument  in  the  development  of  the 
Roman  Law.  Doubtless  special  cases  gave  rise  to  many 
of  its  provisions,  but,  none  the  less,  it  was  in  form  a  leg- 
islative, not  a  judicial,  act.1  The  Scotch  Court  of  Ses- 
sions,  in  its  Acts  of  Sederunt,  assumed  extensive  powers 
of  enacting  laws,2  and  in  our  days,  governments  have 
frequently  intrusted  to  courts  a  wide  authority  to  make 
rules  of  procedure.3  All  this  lies  outside  of  our  present 
limits.  Such  rules  are  not  Judicial  Precedents. 

*  The  praetor,  who  was  the  principal  judicial  officer  in  the  Roman 
republic,  on  assuming  office  made  a  proclamation,  edictum,  of  the 
rules  which  he  proposed  to  follow.  These  edicts  affected  not  only  the 
procedure  but  the  substantive  law.  It  was  the  custom  for  each 
praetor  to  adopt  the  edict  of  his  predecessor  with  additions  and 
amendments.  This  permanent  body  of  rules  was  called  the  perpetual 
edict. 

'Erskine,  Inst.  Bk.  1,  tit.  1,  §  40. 

'  As  to  the  extent  to  which  this  has  been  done,  and  the  advantages 
of  it,  see  an  article  by  Professor  Pound,  in  10  Illinois  Law  Rev.  163. 


200          THE  NATURE  AND  SOURCES  OF  THE  LAW 
Judicial  Again,  the  peculiar  quality  and  effect  of  a  Judicial 

Precedents 

of  £aw°es  Precedent  as  a  source  of  Law  should  be  noted.  It  may 
be  a  source  of  Law  as  expressing  the  opinion  of  learned 
men,  or  as  stating  sound  moral  doctrine,  but  its  peculiar 
force  as  a  Judicial  Precedent  does  not  lie  in  its  accordance 
with  the  opinion  of  the  learned,  or  in  the  fact  that  it  is 
right;  it  is  a  Judicial  Precedent,  not  because  it  ought  to 
have  been  made,  but  because  it  has  been  made.  The  de- 
cision of  a  court  may  unite  the  character  of  a  Judicial 
Precedent  with  the  character  of  an  expression  of  wise 
thought  or  of  sound  morals,  but  often  these  characters  are 
separated.  To  go  no  farther  than  our  own  Law,  there  is 
no  difficulty  in  finding  decisions  standing  as  precedents, 
at  which,  like  the  Eule  in  Dumpor's  Case,1  "the  profession 
have  always  wondered,"  2  or  which,  at  any  rate,  are  no  ex- 
pression of  present  opinion  and  would  never  be  made  for 
the  first  time  to-day. 

Roman  Of  Judicial  Precedents  as  a  source  of  Law,  we  find 

nothing  at  Rome  in  the  time  of  the  Republic,  except 
as  far  as  the  rulings  of  the  Pontifical  College  had  this 
character.3  The  manner  in  which  the  pontifices  inter- 
vened in  lawsuits  between  individuals  is  very  obscure, 
but  there  is  reason  to  believe  that  their  position  was  an 
authoritative  one,  and  it  is  likely  enough  that  in  the  ar- 
chives of  the  college  were  recorded  decisions  which  they 

J4  Co.  119  b  (1603).  The  decision  was  that  where  there  was  a 
condition  in  a  lease  that  the  lessee  should  not  assign  his  interest 
without  the  lessor's  consent,  and  the  lessor  consented  to  one  assign- 
ment, the  condition  was  gone,  so  that  a  second  assignment  could  be 
made  without  his  consent. 

2  Chief  Justice  Mansfield,  in  Doe  v.  Bliss,  4  Taunton,  735.     Com- 
pare Lord  Eldon,  in  Brummell  v.  MoPherson,  14  Ves.  Jr.  173. 

3  See  Dis?.  I,  2,  2,  6. 


JUDICIAL  PRECEDENTS  201 

followed  as  binding  precedents;1  but  this  remains  largely 
a  matter  of  conjecture.2  At  any  rate,  before  the  end  of  the 
Republic,  their  power  of  controlling  litigation  appears  to 
have  greatly  diminished,  and  the  practice  of  giving  opin- 
ions had  passed  to  the  unofficial  body  of  jurisconsults,  juris- 
prudentes?  who  seem  to  have  enjoyed  great  public  con- 
sideration; but  the  opinions  of  these  jurisconsults,  how- 
ever worthy  of  respect,  were  not  binding  on  the  magistrates 
and  judges.  The  jurisconsults  did  not  form  a  judicial 
body. 

But  Augustus  gave  to  certain  persons  jus  respondendi 
by  the  authority  of  the  Emperor.4  All  that  we  know  of 
the  jits  respondendi  is  contained  in  three  passages.5  These 
three  passages  have  called  forth  much  comment,  and  given 
birth  to  many  theories.6 

From  our  present  point  of  view  the  important  question 
is,  whether  the  responsa,  of  those  jurisconsults  who  had  the 
jus  respondendi  were  of  effect  only  in  the  particular  case 
in  which  they  were  given,  or  whether  they  were  obliga- 
tory upon  the  courts  as  precedents  in  later  cases.  The 
probable  opinion  appears  to  be  that  they  had  the  character 
of  true  Judicial  Precedents. 

By  the  time  of  Diocletian  (A.D.  284-305)  the  jus 
respondendi  seems  to  have  ceased  to  be  given,  and,  grad- 
ually, all  the  writings  of  the  great  jurists  of  the  earlier 
years  of  the  Empire  came  to  be  considered  as  authorities, 

1Esmarch,  Rom.  Rechtsgeschichte,  §  44. 
J  Ihering,  1  Geist  des  rom.  Rechts,  §  18  a. 

3  But  see  Cicero,  Topica,  5,  with  commentaries  of  Boethius. 

4  The  common  opinion  has  been  that  the  responsa  of  these  persons 
were  made  binding  upon  the  courts  by  Augustus,  but  some  writers 
think  that  it  was  Hadrian  who  first  gave  them  this  binding  character. 

"Dig.  I,  2,  2,  40;  Gai.  I,  7;  Inst.  I,  2.  8  et  9. 
*See  Glasson,  £tude  sur  Gaius,  84-119. 


202          THE  NATURE  AND  SOURCES  OF  THE  LAW 

without  any  distinction  being  made  between  their  responsa 
and  their  treatises.  It  was  as  if  Judge  Story's  judgments 
and  treatises  were  to  be  considered  of  like  weight.  The 
po^ver  of  adding  to  the  Law  or  modifying  it  by  judicial 
decisions  had  passed  away.  The  Law,  like  the  Empire, 
had  reached  a  period  of  degradation  and  sterility.  It 
had  no  vitality,  and  could  only  nourish  itself  indiscrimi- 
nately on  the  past.1 

Such  was  the  state  of  things  when  Justinian  began  his 
legislation.  But  before  speaking  of  this,  we  must  con- 
sider another  class  of  judicial  utterances — those  emanat- 
ing from  the  Emperors  themselves.  The  legal  utterances 
of  the  Emperors  were  of  two  kinds,  legislative  and  ju- 
dicial. They  were  all  classed  together  as  constitutiones. 
Of  the  legislative  sort  were  the  edicta  and  mandata;  it 
is  unnecessary  here  to  consider  their  special  character; 
they  were  in  their  nature  statutes. 

The  judicial  acts  of  the  Emperor  were  decreta  and 
rescripta.  The  decreta  were  decrees,  final  or  interlocu- 
tory, in  a  cause.  The  rescripta  were  letters  sent  to  the 
judge  or  to  a  party  in  a  suit,  giving  the  decision  which 

1  "The  writings  of  jurists  who  had  not  possessed  the  jus  respondendi 
were  cited  as  entitled  to  an  authority  in  no  way  inferior  to  that  of 
the  writings  of  privileged  jurists,  provided  only  they  were  supported 
by  the  same  literary  prestige  which  distinguished  the  writings  of 
the  illustrious  privileged  jurists.  .  .  .  Considering  that,  in  the  case 
of  the  privileged  jurists,  their  other  writings  which,  of  course,  had 
nothing  to  do  with  their  jus  respondendi,  were  ranked  on  a  par  with 
the  writings  on  the  responsa,  it  was  altogether  absurd  to  insist  on 
the  jus  respondendi  as  a  condition  of  judicial  authority.  The  prac- 
tice of  not  discriminating  between  the  different  kinds  of  writings 
necessarily  led  to  the  practice  of  not  discriminating  between  the 
authors  themselves — which  is  only  another  way  of  saying  that  the 
transfer  of  the  authority  of  the  responsa  to  juristic  literature  in 
general  had  become  an  accomplished  fact."  Sohm,  Institutes,  §  17, 
Ledlie's  trans,  p.  83;  see  also  the  Law  of  Citations  (A.D.  426),  Cod. 
Theod.  I,  4,  3;  p.  264,  post. 


JUDICIAL  PRECEDENTS  203 

ought  to  be  rendered.  There  seems  to  have  been  no  sub- 
stantial difference  in  their  effect  upon  a  suit ;  unquestion- 
ably they  were  alike  obligatory  upon  the  judges  in  the 
cases  in  which  they  were  given.  But  the  question  arises, 
as  with  the  responsa  prudentium,  were  they  binding  as 
precedents  ? 

First,  as  to  Decreta.  That  in  the  classical  period  of 
the  Eoman  Law  decreta  had  sometimes  at  least  the  force  of 
precedents,  seems  the  more  probable  opinion;  Justinian 
says  that  the  binding  force  as  precedents  of  the  Imperial 
decrees  had  been  doubted  by  some,  adding,  "Eorum  quid&m 
vanarn  scrupulositatem  tarn  risimus  quam  corrigendum 
esse  censuimus" ;  *  and  he  declared  that  a  decree  made  by 
the  Emperor  in  a  cause  should  be  a  rule  {lex}  not  only  in 
that  cause,  sed  omnibus  similibus. 

Secondly,  as  to  Rescripta,  with  their  sub-varieties  of 
adnotationes,  subscriptiones,  epistulce,  pragmcdicce  sanc- 
tiones.  These,  as  I  have  said  (though  the  word  may  have 
been  sometimes  used  more  loosely),  were  answers  to  re- 
quests of  a  party  or  of  the  judge  in  a  suit  for  instructions 
how  the  case  should  be  decided.  These  rescripts  were 
obligatory  on  the  court  in  that  suit.  Originally  they 
seem,  in  some  cases  at  least,  to  have  been  binding  as 
precedents.2 

The  danger  which  there  was  that  a  case  would  not  be 
fully  or  fairly  presented  to  the  Emperor  brought  rescripts 
into  disfavor.  Trajan  (A.D.  98-117)  is  said  to  have  re- 
fused to  issue  rescripts  in  answer  to  requests,  "ne  ad  alias 
causas  facta  prceferrentur,  qua  ad  gratiam  composita 

1  "Their  foolish  over-nicety  we  laugh  at,  as  well  as  order  to  be 
amended."    Cod.  I,  14,  12. 

aKriiger,  Quellen,  §   14,  pp.  97,  98. 


204  THE  NATURE  AND  SOURCES  OF  THE  LAW 

viderentur"  and  Macrinus  (A.D.  217,  218),  referring 
to  this,  gave  orders,  "omnia  rescripta  veterum  Prindpum 
tollere,  ut  jure,  non  rescriptis,  ageretur/'  saying,  "nefas 
esse  leges  videri  Com/modi  et  Caracalli  et  hominum  vm~ 
peritorusm,  voluntates"  1  Still  later,  it  was  ordered  by 
Arcadius  and  Honorius  (A.D.  398)  that  rescripts  should 
not  be  regarded  as  precedents;2  and  they  were  forbidden 
by  Justinian  (541).3 

The  idea  of  Judicial  Precedents  was  therefore  familiar 
to  the  Roman  Law,  at  least  at  some  periods  of  its  develop- 
ment. 

The  form  of  Justinian's  Digest  was  peculiar:  a  mass 
composed  of  the  decisions  of  judges  and  the  opinions  of 
jurisconsults  in  particular  cases  was  taken  up  bodily  into 
it  and  enacted  as  a  statute;  but  in  spite  of  this,  it  was 
impossible,  in  interpreting  them,  to  treat  them  as  if  they 
had  been  enunciated  in  the  usual  statutory  form ;  they  had 
to  be  dealt  with  as  if  they  were  precedents,  and  the  mode 
of  reasoning  adopted  in  their  exposition  had,  to  a  con- 
siderable extent,  to  be  that  applicable  to  precedents;4 
and  it  would  have  been  well  if  this  had  been  carried  to 
a  greater  extent. 

A  similar  state  of  things  is  to  be  found  in  the  Codes 
passed  by  the  Legislative  Council  of  India  for  that  coun- 
try. Macaulay  set  the  example,  which  has  been  followed 

1  "Lest  decrees  which  were  evidently  made  as  a  favor  should  be 
brought  forward  in  other  cases."  "To  eliminate  all  the  rescripts  of 
former  Emperors,  in  order  that  suits  might  be  conducted  according 
to  law,  not  rescripts."  "It  is  not  right  that  the  whims  of  Commodus 
and  Caracalla  and  unskilled  men  should  be  regarded  as  laws." 
Capitolinus,  Life  of  Macrinus,  c.  13. 

'Cod.  Theod.  I,  2,  11. 

•Nov.  113,  1;  see  1  Savigny,  Heut.  rom.  Recht,  §  24. 

4  P.  186,  ante. 


JUDICIAL  PRECEDENTS  205 

by  his  successors,  of  inserting  illustrative  cases  in  the 
body  of  the  statutes.  The  character  of  such  parts  of  the 
Law,  their  resemblance  to  and  their  difference  from  cases 
decided  in  the  courts,  are  well  given  in  the  introduction  of 
Macaulay  to  his  Criminal  Code.1 

In  Germany  during  the  Middle  Ages  the  Courts  were  German 
composed  of  a  judge  (Kichter)  and  Schb'ffen.2  The 
Eichter  presided,  kept  order,  and  gave  judgment,  but  on 
a  doubtful  point  of  law  he  took  the  opinion  of  the  Schoffen, 
who  were  the  Urtheiler,3  and  often  the  Schoffen  sought 
the  opinion  of  the  Schoffen  of  another  city  or  town, 
either  because  of  their  reputation  as  depositaries  of  the 
Law,  or  because  such  city  or  town  stood  in  the  relation 
of  mother  city  to  that  from  which  the  request  cama4 

The  opinions  of  the  Schoffen  were  generally  called 
Weisthiimer.  There  is  a  great  collection  of  them  by 
Grimm,  the  publication  of  which  covered  the  interval  be- 
tween 1840  and  1878.5  They  took  a  variety  of  forms; 
sometimes  they  were  put  as  general  rules,  sometimes  as 
answers  to  hypothetical  cases,  and  sometimes  as  opinions 
in  particular  real  cases.  These  last  availed,  it  would 

1  Cited  1  Stokes,  Anglo-Indian  Codes,  xxiv  et  seq. 
3  Sheriffs,  or  Assessors. 

3  Doomsmen,  Deciders. 

4  The  court  to  whose  Schoffen  the  request  was  sent  was  called  the 
Oberhof,  but  the  relation  was  not  at  all  the  same  as  that  which  pre- 
vails between  a  court  of  first  instance  and  the  appellate  court,  for 
the  Schoffen  of  the  Oberhof  were  not  bound  to  answer.    See  1  Stobbe, 
Geschichte   d.    deutsch.    Rechtsquellen,    §    27;    1    Planck,    Deutsche 
Gerichtsverfahren   im  Mittelalter,    §§    15-19,   43;    Gaupp,   Das   alte 
Magdeburgische    und    Hallische    Recht;    Schultze,    Privatrecht    und 
Process,  §§  6-14. 

'  Others  will  be  found  in  Gaupp's  little  book,  cited  in  the  preceding 
note,  in  Wasserschleben,  Deutsche  Rechtsquellen,  and  in  Toma- 
schek,  Der  Oberhof  Iglau  und  seine  Schoffengespriiche.  A  list  of 
books  containing  Weisthiimer  will  be  found  at  the  beginning  of 
Planck's  book,  above  cited,  and  in  1  Stobbe,  Geschichte  d.  deutsch. 
Rechtsquellen,  §  56,  note  (2). 


206          THE  NATURE  AND  SOURCES  OF  THE  LAW 

seem,  not  only  in  the  cases  in  which  they  were  delivered, 
but  also  as  binding  in  future  cases  in  the  same  court,  and 
as  having  a  weight  beyond  their  intrinsic  merits  in  other 
courts.1 

The  introduction  of  the  Roman  Law  into  Germany 
and  the  driving  out  of  the  ancient  Law  were  due  mainly 
to  the  doctors  of  the  Civil  Law  acquiring  judicial  posi- 
tion. This  seems  to  be  the  conclusion  reached  by  all  late 
writers.2  But  the  modern  German  civilians  have  rather 
ungratefully  kicked  down  the  ladder  by  which  they  them- 
selves climbed,  and  exhibit  a  great  repugnance  to  rec- 
ognize judicial  decisions,  or  Gericliisgebmuch,  in  any 
form,  as  a  source  of  Law.  Perhaps  the  dislike  felt  to- 
ward the  old  Schoffen  courts  may  have  something  to  do 
with  this  attitude.3 

At  the  beginning  of  the  last  century,  Thibaut  indeed 
stated  the  doctrine  of  Judicial  Precedent  in  a  form  nearly 
as  strong  as  prevails  in  the  Common  Law.  "If  in  a 
court  a  rule  has  been  frequently  and  constantly  followed 
as  Law,  that  court  must  follow  these  hitherto  adopted 
rules  as  Law,  whether  they  relate  to  simple  forms  or  to 
the  substances  of  controversies,  if  they  do  not  contradict 

*1  Stobbe,  Handbuch  d.  deutsch.  Privatrechts,  §  24;  Gaupp,  90-94. 

So  in  the  Imperial  Court,  in  1235,  the  Emperor  Frederick  II.  estab- 
lished a  standing  judge  and  decided:  "Idem  scribet  omnes  sententias 
coram  nobis  in  majoribtis  causis  inventas  maxime  contradictorio  ju- 
ditio  obtentas,  quce  vulgo  dicuntur  gesamint  urteil,  ut  in  posterum  in 
casibus  sinvilibus  ambiguitas  resevndatur,  expressa,  terra  seoundum 
oonsuetudinem  cujus  sentenciatum  est."  "He  shall  write  down  all 
the  opinions  delivered  in  our  court  in  the  more  important  cases, 
especially  where  there  was  dissent,  which  in  the  vulgar  tongue  are 
called  'The  body  of  dooms',  in  order  that  for  the  future  in  similar 
cases  doubt  may  be  resolved, — express  statement  being  made  of  the 
district  according  to  whose  custom  the  sentence  was  pronounced." 
1  Stobbe,  Geschichte,  §  48. 

'See  article  by  W.  S.  Holdsworth  in  28  Law  Quart.  Rev.  39,  49. 

•See  A.  Duck,  De  Auth.  Jur.  Civ.  II.  c.  2,  §§  10-19. 


JUDICIAL  PRECEDENTS  207 

the  statutes,  but  yet  only-  on  the  points  on  which  the 
former  judgments  agreed.  Coordinate  courts  do  not  bind 
each  other  with  their  judgments,  but  upper  courts  do 
bind  the  lower,  so  far  as  an  earlier  practice  has  not 
formed  itself  in  the  latter;  and  one  ought  not  to  treat 
the  opinions  of  jurists  as  equal  to  the  practice  of  the 
courts,  although  the  former  may,  under  certain  circum- 
stances, be  of  importance  as  authorities."  1 

But  Thibaut's  opinion  does  not  seem  to  be  followed,  and 
Jordan,  in  a  long  and  much-cited  article,2  summed  up 
his  own  theory  thus : — 

A.  Judicial  usage  (  Gerichtsgebrauch)  as  such,  that  is, 
by  reason  of  its  being  judicial  usage,  has  formally  no 
binding  force,  and  materially,  only  so  much  value  as  on 
the  principles  of  a  sound  jurisprudence  belongs  to  it  by 
reason  of  its  inner  nature;  that  hence — 

B.  A  court  cannot  be  bound  to  follow  its  own  usage 
or  the  usage  of  another  court  as  a  rule  of  decision,  but 
rather  has  the  duty  to  test  every  question  with  its  own 
jurisprudence,  and  ought  to  apply  usage  only  when  it 
can  find  no  better  rule  of  decision ;  that  again — 

C.  Judicial  usage  makes  binding  law  for  the  parties  as 
soon  as  a  judgment  based  on  it  has  taken  effect;  that 
hence — 

D.  Many  judicial  usages  have  in  this  way  come  grad- 
ually to  be  accepted  and  practised,  notwithstanding  they 
have  met  with  theoretical  disapproval ;  that  again — 

E.  On  the  other  hand,  on  account  simply  of  their  real 
excellence,  in  so  far  as  they  by  means  of  this  have  ac- 
quired not  only  a  hold  in  approved  courts,  but  also  the 

irThibaut,  Pand.  §  16. 

S8  Arch.  f.  civ.  Pr.   191,  245  et  seq.    (1825). 


208          THE  NATURE  AND  SOURCES  OF  THE  LAW 

approval  of  theorists,  and,  on  the  theory  that  for  cases 
not  provided  for  in  the  statutes,  they  give  the  rules  of 
decision  which  best  correspond  to  the  presumptive  will 
of  the  legislature,  many  of  these  judicial  usages  become 
pretty  generally  recognized  legal  principles  which  cannot 
be  left  out  of  account.  The  fact  that  the  legislature  pre- 
scribes no  other  rules  for  future  cases  may  be  considered 
an  approval  of  them  by  the  legislature;  that  finally — 

F.  The  lower  courts  act  in  accordance  with  the  will  of 
the  legislature,  if  they  follow  the  clear  usage  of  the  higher 
courts,  although  they  are  not  bound  to  do  so  absolutely, 
but  are  only  held  to  such  following  so  far  as  they  find  it 
grounded  in  the  will  of  the  legislature  according  to  their 
own  examination,  from  which  they  are  never  excused. 

Later  writers  seem  generally  to  deny  that  Gerichisge- 
brauch  is  a  source  of  Law  at  all,  and  consider  judicial  de- 
cisions to  be  merely  evidence  (just  as  many  other  things 
might  be  evidence)  of  Customary  Law.  This  seems  to 
have  been  Savigny's  opinion.1  Such  are  the  views  of 
Wachter;2  and  of  Keller.3  So  Stobbe,4  "Practice  is  in 
itself  not  a  source  of  Law;  a  court  can  depart  from  its 
former  practice,  and  no  court  is  bound  to  the  practice 
of  another."  "Departure  from  the  practice  hitherto  ob- 
served is  not  only  permitted,  but  required,  if  there  are 
better  reasons  for  another  treatment  of  the  question  of 
Law." 

Dernburg  is  the  only  recent  author  whom  I  have  ob- 
served fairly  to  admit  that  Gerichtsgebrauch,  is  a  source 
of  law;  and  even  he  says,  "Single  decisions  of  a  court, 

JSee  1  Heut.  rom.  Recht,  §  29. 

3  23  Arch.  f.  civ.  Pr.  432. 

8  In  his  Pandekten,  §  4. 

*1  Handb.  d.  deutsch.  Privatrechts,  §  24,  pp.  144,  146. 


JUDICIAL  PRECEDENTS  209 

even  of  the  highest,  do  not  make  Gerichtsgebrauch" 
which  he  defines  as  "the  general,  uniform,  and  long-con- 
tinued exercise  of  a  legal  tenet  by  the  courts  of  the 
country."  1 

Nor  are  these  views  as  to  Gerichtsgebrauch  confined  to 
the  text-writers.  They  are  shared  by  the  courts  them- 
selves. As  is  shown,  for  instance,  by  an  interesting  de- 
cision of  the  Imperial  Court.2  In  New  Hither  Pome- 
rania  there  had  for  a  long  time  prevailed  a  doctrine  of 
the  courts  (Gerichtsgebrauch},  supported  by  decisions  of 
the  earlier  Tribunal  in  Wismar  and  of  the  later  Oberap- 
pellationsgericht  in  Greifswald,  and  recognized  as  binding 
by  the  Prussian  Obertribunal,  that  discontinuous  servi- 
tudes (e.g.,  rights  of  way)  are  not  acquired  by  a  ten  or 
twenty  years'  user,  but  only  by  immemorial  prescription. 
The  Imperial  Court  reversed  a  judgment  founded  on  this 
view,  on  the  ground  that  the  doctrine  was  not  based  upon 
rules  peculiar  to  the  law  of  the  special  locality,  but  upon 
an  erroneous  interpretation  of  the  Roman  Law.3 

One  point  especially  in  the  views  of  the  German  writers 
seems  very  strange  to  those  brought  up  in  a  different 
school.  To  a  Common  Law  lawyer,  the  duty  of  a  lower 
court  to  follow  the  precedents  set  by  the  court  of  appeal 
seems  one  of  the  clearest  of  judicial  obligations.  To 
delay  a  party  of  what  will  be  declared  his  right  in  the 
end  and  to  put  him  to  the  expense  and  trouble  of  an  ap- 
peal seems  wrong ;  but  the  German  writers  are  all  express 
in  denying  the  duty  of  following  the  precedents  set  by 

1 1  Dernburg,  Pand.  §  29. 

*3  Entscheidungen  dea  Reichsgerichts,  Civilsachen,  Nr.  59,  p.  210; 
S.  C.  36  Scuff ert,  Arch.  Nr.  254,  p.  385  (1880). 

'See  another  case,  7  Entscheid.  d.  Reichsg.  Civ.  Nr.  50,  p.  154; 
S.  C.  40  Seuf.  Arch.  Nr.  86,  p.  130. 


210          THE  NATURE  AND  SOURCES  OF  THE  LAW 

the  court  of  appeal,  even  Thibaut l  conceding  that  the 
upper  courts  bind  the  lower  only  so  far  as  an  earlier  prac- 
tice has  not  established  itself  in  the  latter.  And  Mauren- 
brecher,  who  at  one  time  held  the  contrary,2  appears  to 
have  weakened  on  his  first  statement.  Gengler  is  the  only 
writer  cited  by  Stobbe  as  maintaining  unconditionally 
the  duty  of  following  the  precedents  set  by  an  upper 
court.3 

At  various  times  and  places  in  Germany  statutes  have 
been  passed  on  this  subject;  some  of  the  statutes  direct 
that  courts  shall  follow  their  own  precedents,  and  others 
that  decisions  of  the  highest  court  shall  be  followed  by  the 
lower  courts.  An  account  of  several  of  these  statutes 
will  be  found  in  Stobbe;4  and  that  practically  Gerichts- 
gebr&uch  is  having  an  increased  influence  on  the  develop- 
ment of  German  Law  is  shown  by  the  increasing  publica- 
tion of  decisions  of  the  courts,  which  in  England  has  gone 
on  for  hundreds  of  years,  but  in  Germany  began  only  in 
the  latter  part  of  the  nineteenth  century. 

In  France,  as  in  Germany,  it  would  seem  that  de- 
cisions of  courts  are  not  binding  precedents,  even  on  in- 
ferior courts.  Collections  of  decisions  have,  however,  been 
for  a  long  time  published  in  France  and  are  cited  by  coun- 
sel and  judges.5 

In  Scotland  the  position  assigned  to  Judicial  Prece- 
dents appears  to  be  intermediate  between  that  occupied  by 
them  on  the  Continent  and  that  to  which  they  are  raised 

1  Loo.  cit.  p.  207,  ante. 
1  See  1  Stobbe,  Handb.  §  24,  p.  144. 
•See  pp.  119-120,  ante. 
«1   Handb.   §24,  pp.   144-146. 

•Aubry  et  Rau,  Cours  de  droit,  §§39  6i».,  51,  E;  1  Planiol, 
Traite  elementaire,  §§  205-206. 


JUDICIAL  PRECEDENTS  211 

in  England.  The  example  of  the  courts,  and  indeed  the 
whole  tone  of  the  Law,  in  England,  may  have  had  an 
influence  in  elevating  the  reliance  on  precedents,  as  it  is 
now  found  in  Scotland,  beyond  the  condition  in  which 
we  find  it  on  the  Continent;  and  the  power  given  to  the 
Court  of  Session  to  formally  legislate  by  means  of  Acts 
of  Sederunt,  may  have  aided  in  giving  weight  to  their 
expressed  judgment  in  litigated  cases.1  On  the  other  hand, 
the  fact  that  the  court  of  ultimate  appeal,  the  House  of 
Lords,  was  a  tribunal  composed  entirely  of  English  judges, 
for  I  believe  no  one  was  ever  called  from  the  Scotch 
bench  or  bar  to  the  House  of  Lords  until  the  Appellate 
Jurisdiction  Act  of  1876  (except  Lord  Colonsay  in  1867) 
and  the  irritation  which  prevailed  in  Scotland  over  this 
state  of  affairs,  has  had  probably  considerable  effect 
in  maintaining  the  view  that  precedents  do  not  make 
Law  which  seems  to  have  prevailed  in  the  earlier  times.2 

In  England,  and  in  the  countries  where  the  English  English 

Law 

Common  Law  prevails,  a  very  different  theory  as  to  Ju- 
dicial Precedents  exists. 

While  on  the  Continent  of  Europe  jurists  have  insisted 
and  still  insist  that  a  decision  by  a  court  has,  apart  from 
its  intrinsic  merit,  no  binding  force  on  a  judicial  tribunal, 
even  on  a  tribunal  from  which  an  appeal  lies  to  the  court 
rendering  the  decision,  it  is  Law  in  England  and  in  the 
United  States  that,  apart  from  its  intrinsic  merits,  the 
decision  of  a  court  is  of  great  weight  in  that  court  and  all 
coordinate  courts  in  the  same  jurisdiction,  and  that  it  is 
absolutely  binding  on  all  inferior  courts.3 

aP.    199,  ante. 

'See  Erskine,   Inst.   Bk.   I,  tit.    1,    §   47. 

*  Cf .  p.  124,  ant e. 


212          THE  NATURE  AND  SOURCES  OF  THE  LAW 

The  cause  of  this  distinction  between  the  English  and 
the  Continental  Law  is  one  of  the  unsolved  problems  of 
Comparative  Jurisprudence.  Is  it  due  to  a  difference 
in  race,  or  in  political  organization,  or  to  the  presence 
on  the  Continent  of. the  systematic  body  of  the  Roman 
Law?  Apparently,  there  was  originally  in  the  English 
Law  no  special  regard  for  Judicial  Precedents.  If  there 
had  been,  there  would  be  more  traces  to  be  found  of  it 
in  the  earlier  treatises  and  reports. 

Glanville,  who  was  probably  the  real  author  of  the 
Tractatus  de  Legibus,  commonly  attributed  to  him,  died 
in  1190.  There  appears  to  be  but  one  reference  in  his 
treatise  to  decisions  of  the  courts.1 

Bracton's  treatise,  De  Legibus  et  Consuetudmibus 
Anglice,  was  written  in  the  middle  of  the  thirteenth  cen- 
tury. Bracton  is  an  exception  to  what  had  gone  before, 
and  what  came  after,  his  time.  He  abounds  in  references 
to  cases.  But  Mr.  Maitland,  in  his  remarkable  book,  has 
shown  that,  with  trifling  exceptions,  the  cases  cited  by 
Bracton  were  all  decided  at  courts  in  which  Martin  Pates- 
hull  and  William  Raleigh  were  judges.2  "His  is  a  treatise 
on  English  law  as  administered  by  Pateshull  and 
Raleigh."  3 

The  exceptional  character  of  Bracton  is  shown  by  the 
later  history  of  the  Law.  Fleta,  which  was  written  to- 
wards the  end  of  the  thirteenth  century,  was  largely  drawn 
from  Bracton,  but  in  only  one  chapter  does  it,  so  far  as 
I  have  observed,  refer  to  particular  decisions;  in  this 
chapter,  which  is  the  third  of  the  second  book,  there  are 

*It  will  be  found  in  Book  VII,  c.  1. 
3  1  Maitland,  Bracton's  Notebook,  40,  45,  48,  et  seq. 
*  Id.  §  60 ;  and  see  Introduction  to  the  Twelfth  Volume  of  the  Year 
Book  Series  of  the  Selden  Society,  p.  xviii. 


JUDICIAL  PRECEDENTS  213 

three  cases  as  to  the  jurisdiction  of  the  Steward  of  the 
King's  Court  when  the  King  was  out  of  England,  two  of 
them  being  in  Gascony  and  one  in  Paris;  the  last  being 
a  decision  of  the  French  King's  Council,  that  the  King  of 
England  had  jurisdiction  over  Ingelramus,  caught  in  the 
English  King's  hotel  with  stolen  goods;  Ingelramus  was 
tried  before  the  Steward  and  "suspensus  in  patibulo  Sancti 
Germani  de  Pratis"  * 

Britton  also  wrote  about  the  close  of  the  thirteenth 
century,  and  his  treatise  was  in  like  manner  taken  to 
a  great  extent  from  Bracton,  but  there  appears  to  be  no 
reference  whatever  in  it  to  any  decision  of  the  courts. 

As  to  the  two  legal  treatises  of  the  fifteenth  century: 
in  Fortescue,  De  Laudibus  Legum  Anglice,  there  is  no 
reference  to  any  decided  case;  and  in  the  original  text 
of  Littleton's  Treatise  on  Tenures,  of  seven  hundred  and 
forty-nine  sections,  some  ten  cases  only  are  referred  to. 

The  first  of  the  long  series  of  reports  which  have  been  The  Year 

.  Books 

printed  begins  in  1292.2  Professor  Maitland,  the  great- 
est historian  whom  the  English  Law  has  ever  had,  has 
shown,  almost  to  demonstration,  that  the  Year  Books 
were  not  authoritative  collections  of  cases  to  serve  as 
precedents,  but  were  the  notebooks  of  students  under  the 
bar,  apprentices,  as  they  were  called.  What  Professor 
Maitland  says  is  so  interesting  that  I  will  quote  at  length 
from  his  Introduction  to  the  Third  Volume  of  the  Year 
Book  Series  of  the  Selden  Society.8 

"The  term  'Law  Reports'  inevitably  suggests  to  us 
books  that  are  to  be  cited  in  court.  It  is  true  that  our 

1  "Hanged  on  the  gallows  of  St.  Germain  des  Pr6s." 
•Year  Book  20  &  21  Edw.  I.     Rolls  Series. 
»P.  ix  ad  fin. 


214           THE  NATURE  AND  SOURCES  OF  THE  LAW 

modern  reports  serve  more  purposes  than  one.  They  have 
an  educational  value.  Young  men  will  read  them  in  order 
to  learn  the  law,  and  older  men  will  read  them  in  order  to 
amplify  their  knowledge.  Still  on  the  whole  we  might 
say  that  to  serve  as  'authority/  to  be  the  base  of  judg- 
ments and  of  'opinions'  that  should  forestall  judgments, 
is  in  our  own  time  the  final  cause  of  the  report.  Now 
when  we  turn  to  these  earliest  Year  Books  this  final  cause 
seems  to  fall  far  into  the  background  and  almost  to  vanish. 
If  these  books  themselves  prove  anything,  they  prove 
that  they  are  rarely,  if  ever,  cited  by  counsel  or  justices. 
The  voucher  of  a  precedent  is,  to  all  appearance,  an  un- 
common event.  We  shall  hardly  find  more  than  a  couple 
of  instances  in  any  one  term ;  and  when  the  voucher  comes, 
it  looks  much  more  like  a  personal  reminiscence  than  a 
reference  to  a  book.  It  will  begin  with  'I  saw,'  or  'I 
remember/  or  'Don't  you  remember?'  and  when  Chief 
Justice  Beresford  recalls  a  case  in  this  way,  the  reporters 
do  their  best  to  write  down  the  tale  that  he  tells,  for  it  is 
unknown  to  them  but  memorable.  No  contrast  could  be 
stronger  than  that  which  we  find  between  these  vague 
vouchers,  if -vouchers  they  may  be  called,  and  Br  acton's 
precise  citations  of  cases  that  stand  upon  the  plea  rolls. 
Having  regard  to  what  Braeton  did,  we  may  indeed 
say  that  already  in  his  time  the  English  common  law 
showed  a  strong  natural  inclination  to  become  the  'case 
law'  that  it  ultimately  became;  but,  free  access  to  the 
records  of  the  Court  being  impossible,  a  long  period  seems 
to  elapse  before  this  tendency  can  prevail."  * 

1See  further  Introductions  to  Sixth  Volume  of  Year  Book  Series 
of  the  Selden  Society,  pp.  ix-xxviii,  xxxviii ;  to  Seventh  Volume,  p. 
xxxi;  and  to  Twelfth  Volume,  p.  xviii. 


JUDICIAL  PRECEDENTS  215 

And  in  a  later  place  in  the  same  Introduction,  Profes- 
sor Maitland  adds.1 

"And  let  us  not  explain  this  by  saying  that  the  men  of 
the  time  could'  do  no  better.  On  the  contrary,  we  must 
remember  that  the  educated  men  of  the  time  were  great 
citators  of  'authorities.'  The  medieval  scholar,  were  he 
divine,  philosopher,  canonist,  or  civilian,  could  give  you  a 
text  for  everything,  and  a  text  that  you  could  find  with- 
out much  labor  if  you  had  a  copy  of  the  book  to  which  he 
referred." 

I  have  gone  down  through  the  time  covered  by  the  Year 
Books,2  taking  the  cases  of  a  whole  year  at  intervals  of 
fifty  years,  and  the  result  quite  bears  out  the  accuracy  of 
Professor  Maitland's  statement  as  to  the  scarcity  of  the 
references  of  judicial  decisions.  In  the  later  years  they 
are  slightly  increased,  but  only  slightly.8 

Coming  down  a  generation  after  the  close  of  the  Year  Early 

reporters 

Books,  we  find  one  of  the  most  famous  and  accurate  of 
reporters,  and  one  of  those  who  reports  what  passes  in 
court  at  the  greatest  length,  Plowden.  Taking  the  first 
ten  cases  in  his  second  part,  we  find  they  occupy  seventy- 
four  quarto  folios,  or,  leaving  out  the  pleadings,  which 
Plowden  gives  at  length,  over  fifty  folios,  or  one  hundred 
pages.  An  examination  of  the  use  of  precedents  shows 
that  about  thirty  cases  are  cited  and  stated  as  authority 
by  court  or  counsel. 

It  must  be  remarked  that  in  other  reporters  of  about 
the  same  period  a  somewhat  larger  number  of  references 
will  be  found,  but,  with  every  allowance,  the  contrast 

*P.  lx. 

1  See  9  Harvard  Law  Rev.  27,  36-38. 

*  See  Introduction  to  Sixth  Volume  of  the  Year  Book  Series  of  the 
Selden  Society,  p.  xxix. 


216          THE  NATURE  AND  SOURCES  OF  THE  LAW 

between  all  or  any  of  the  earlier  reporters  and  Lord  Coke 
is  enormous,  for  with  Lord  Coke  the  citation  of  cases 
reached  a  height  which  it  has  never  equalled  since.  Open- 
ing in  the  middle  of  his  reports,  we  find  in  the  first 
twenty-five  folios  of  the  seventh  volume  two  hundred  and 
forty  citations  of  cases,  or  sixteen  times  as  many  as  in 
Plowden.  And  although  English  judges  and  lawyers  of 
modern  times  are  not  so  prolific  in  their  citations  as  Lord 
Coke,  the  weight  attached  to  precedents  has  not  diminished 
since  his  time. 

There  are  four  questions  under  the  English  Law  as  to 
Precedents  to  consider: — 

1.  How  great  is  the  authority  of  a  decision  in  the 

court  which  made  it,  or  in  a  court  of  coordinate 
jurisdiction  ? 

2.  Is  there  any  court  which  is  absolutely  bound  by  its 

own  decisions? 

3.  Does  a  lower  court  ever  decide  in  opposition  to  a 

higher  court  of  appeal? 

4.  Can  decisions  of  the  courts  be  properly  considered 

as  sources  of  Law? 
Decisions         First.     It  is  impossible  to  answer  the  first  question 


in  same  or 


co6rdinat«  with  precision ;  precedents,  in  the  English  Law,  have 
great  weight  but  they  have  not  irresistible  weight;  de- 
cisions can,  I  mean  can  according  to  the  theory  of  the 
English  Law,  be  overruled  or  not  followed.  Any  attempt 
at  a  more  exact  determination  would  simply  be  a  theory  of 
the  particular  writer  as  to  what  would  be  desirable  rules, 
and  not  as  to  what  rules  do  in  fact  actually  govern.  The 
best  statement  of  the  circumstances  which  add  to  or  di- 
mmish the  weight  of  precedents  is  to  be  found  in  Ram  on 
Judgments.  The  fact  that  precedents  in  the  English  Law 


JUDICIAL  PRECEDENTS  217 

are  to  be  generally  but  not  always  followed,  and  that  no 
rules  have  been,  or  apparently  ever  can  be,  laid  down  to 
determine  the  matter  precisely,  shows  how  largely  the  Law 
in  England  is  the  creation  of  the  judges,  for  they  not  only 
make  precedents,  but  determine  when  the  precedents  shall 
be  departed  from. 

Second.     The  only  English  court  which  is  absolutely  House  of 
bound  by  its  own  prior  decision  is  the  highest,  the  House  bound  by 

C    T          1      1         -XT  i  -r  its   OWn 

oi  Lords.1  JNo  such  doctrine  governs,  however,  the  Ju-  decision 
dicial  Committee  of  the  Privy  Council,  which  is  also  for 
Colonial  and  certain  other  matters  a  court  of  ultimate  ap- 
peal. Thus  the  decision  that  a  colonial  legislature  had 
a  Common  Law  power  to  punish  contempts,  which  was 
made  in  Beaumont  v.  Barrett,2  was  overruled  in  Kielley  v. 
Carson,9  the  same  judge,  Baron  Parke,  delivering  the  opin- 
ion in  both  cases. 

The  theory  that  the  House  of  Lords  is  bound  to  follow 
its  own  precedents  is  not  an  ancient  one.  As  late  as  1T60, 
in  Pelham  v.  Gregory,*  the  House  of  Lords  decided  con- 
trary to  a  previous  decision  of  its  own.  But  the  prevailing 
view  now  seems  to  be  that  the  House  of  Lords  cannot  de- 
part from  its  own  precedents  in  judicial  matters.5 

Third.  Does  a  lower  court  in  England  ever  decide  in  Decision 

in  higher 

opposition  to  a  precedent  furnished  by  a  court  of  appeal  ?  court 
Never,  unless  there  has  been  an  obvious  blunder  made  by 
the  upper  court     I  can  recall  but  two  instances  in  the 

1  See  the  author's  article  in  9  Harv.  Law  Rev.  27,  39.  But  see  also 
Pollock,  First  Book  of  Jur.  (3d  ed.)  328-334. 

»1  Moore,  P.  C.  59  (1836).    ' 

3  4  Moore,  P.  C.  63  (1842);  and  see  Read  v.  Bishop  of  Lincoln, 
[1892]  A.  C.  644,  654. 

4 3  Bro.  P.  C.  (Toml.  ed.)  204. 

B  London  Street  Tramways  Co.  v.  County  Council,  [1898]  A.  C.  375. 
In  Peerage  Caaes,  the  House  of  Lords  is  not  bound  by  its  previous 
decisions.  St.  John  Peerage  Claim,  [1915]  A.  C.  282,  308. 


218          THE  NATURE  AND  SOURCES  OF  THE  LAW 

English  books.  The  first  is  Hensman  v.  Fryer,1  where  the 
court  of  appeal  held  that  legatees  of  sums  of  money  and 
legatees  of  specific  articles  or  pieces  of  land  must  con- 
tribute pro  rata  to  the  payment  of  a  testator's  debts,  con- 
trary to  the  well-settled  rule  that  the  legatees  of  money 
must  bear  the  burden.  The  lower  courts  have  repeatedly 
refused  to  follow  this  decision,  saying  that  it  was  clearly 
a  mistake.  The  other  instance  is  a  ruling  of  Lord  West- 
bury,  when  Chancellor,  in  Cookney  v.  Anderson?  made 
in  ignorance  of  a  statute. 

Fourth.  Can  decisions  of  the  courts  be  properly  con- 
sidered as  sources  of  Law?  If  the  object  of  asking  this 
question  is  to  ascertain  the  fact,  there  can  be  but  little 
doubt  of  the  answer.  Certainly  the  judges,  in  deciding 
cases,  draw  rules  from  precedents.  They  decide  cases 
otherwise  than  they  would  have  -decided  them  had  the 
precedents  not  existed,  and  they  follow  the  precedents, 
although  they  may  think  that  they  ought  not  to  have  been 
made.  Why  has  any  question,  therefore,  been  raised 
on  this?  It  is  because  the  judges  have  been  unwilling  to 
seem  to  be  law-givers,  because  they  have  liked  to  say  that 
they  applied  Law,  but  did  not  make  it,  while,  if  the  deci- 
sions of  courts  were  sources  of  Law,  it  could  not  be  denied 
that  the  judges,  to  that  extent,  did  make  Law.3 

Sir  Matthew  Hale,  in  his  History  of  the  Common  Law, 
which  was  first  published  in  1713,  after  his  death,  says: — 

"The  decisions  of  courts  of  justice  ...  do  not  make  a 
law  properly  so  called  (for  that  only  the  King  and  Parlia- 

'L.  R.  2  Eq.  627;  3  Ch.  420  (1867). 

*De  G.  J.  &  S.  365  (1863).     See  Tompkins  v.  Colthurst,  1  Ch.  D. 
626,  and  Dugdale  v.  Dugdale,  L.  R.  14  Eq.  234. 
*  See  p.  99,  cmte. 


JUDICIAL  PRECEDENTS  219 

ment  can  do)  ;  yet  they  have  a  great  weight  and  authority 
in  expounding,  declaring  and  publishing  what  the  law  of 
this  kingdom  is.  ...  And  though  such  decisions  are  less 
than  a  law,  yet  they  are  a  greater  evidence  thereof,  than 
the  opinion  of  any  private  persons,  as  such,  whatsoever. 
.  .  .  Because  they  [the  judges]  do  sedere  pro  tribunali, 
and  their  judgments  are  strengthened  and  upheld  by  the 
laws  of  this  kingdom,  till  they  are  by  the  same  law  re- 
versed or  avoided."  * 

But   the    classical    passage    is    in    Blackstone's    Com- 
mentaries : — 

"As  to  general  customs,  or  the  common  law,  properly  so 
called ;  this  is  that  law,  by  which  proceedings  and  determi-  theory 
nations  in  the  king's  ordinary  courts  of  justice  are  guided 
and  directed.  .  .  .  How  are  these  customs  or  maxims  to 
be  known,  and  by  whom  is  their  validity  to  be  determined  ? 
The  answer  is,  by  the  judges  in  the  several  courts  of  jus- 
tice. They  are  the  depositaries  of  the  laws;  the  living 
oracles,  who  must  decide  in  all  cases  of  doubt,  and  who 
are  bound  by  an  oath  to  decide  according  to  the  law  of 
the  land.  .  .  .  These  judicial  decisions  are  the  principal 
and  the  most  authoritative  evidence  that  can  be  given  of 
the  existence  of  such  a  custom  as  shall  form  a  part  of 
the  common  law.  .  .  .  For  it  is  an  established  rule  to 
abide  by  former  precedents,  where  the  same  points  come 
again  in  litigation;  as  well  to  keep  the  scale  of  justice 
even  and  steady,  and  not  liable  to  waver  with  every  new 
judge's  opinion;  as  also  because  the  law  in  that  case 
being  solemnly  declared  and  determined,  what  before  was 
uncertain,  and  perhaps  indifferent,  is  now  become  a  per- 

*Hale,  Hist.  Com.  Law   (4th  ed.)   67;    (5th  ed.)    141. 


220          THE  NATURE  AND  SOURCES  OF  THE  LAW 

manent  rule,  which  it  is  not  in  the  breast  of  any  subse- 
quent judge  to  alter  or  vary  from,  according  to  his  private 
sentiments,  he  being  sworn  to  determine,  not  according 
to  his  own  private  judgment,  but  according  to  the  known 
laws  and  customs  of  the  land ;  not  delegated  to  pronounce 
a  new  law,  but  to  maintain  and  expound  the  old  one. 
Yet  this  rule  admits  of  exceptions  where  the  former  de- 
termination is  most  evidently  contrary  to  reason;  much 
more  if  it  be  clearly  contrary  to  the  divine  law.  But  even 
in  such  cases  the  subsequent  judges  do  not  pretend  to 
make  a  new  law,  but  to  vindicate  the  old  one  from  mis- 
representation. For  if  it  be  found  that  the  former  deci- 
sion is  manifestly  absurd  or  unjust,  it  is  declared,  not 
that  such  a  sentence  was  bad  law,  but  that  it  was  not 
law;  that  is,  that  it  is  not  the  established  custom  of  the 
realm,  as  has  been  erroneously  determined.  .  .  .  The 
doctrine  of  the  law  then  is  this :  that  precedents  and  rules 
must  be  followed,  unless  flatly  absurd  or  unjust:  for 
though  their  reason  be  not  obvious  at  first  view,  yet  we 
owe  such  a  deference  to  former  times  as  not  to  suppose 
they  acted  wholly  without  consideration.  To  illustrate 
this  doctrine  by  examples.  It  has  been  determined,  time 
out  of  mind,  that  a  brother  of  the  half  blood  shall  never 
succeed  as  heir  to  the  estate  of  his  half  brother,  but  it 
shall  rather  escheat  to  the  king,  or  other  superior  lord. 
Now  this  is  a  positive  law,  fixed  and  established  by  custom, 
which  custom  is  evidenced  by  judicial  decisions;  and 
therefore  can  never  be  departed  from  by  any  modern 
judge  without  a  breach  of  his  oath,  and  the  law.  For 
herein  there  is  nothing  repugnant  to  natural  justice; 
though  the  artificial  reason  of  it,  drawn  from  the  feodal 


JUDICIAL  PRECEDENTS  221 

law,  may  not  be  quite  obvious  to  everybody.  And  there- 
fore, though  a  modern  judge,  on  account  of  a  supposed 
hardship  upon  a  half  brother,  might  wish  it  had  been 
otherwise  settled,  yet  it  is  not  in  his  power  to  alter  it. 
But  if  any  court  were  now  to  determine,  that  an  elder 
brother  of  the  half  blood  might  enter  upon  and  seize  any 
land  that  were  purchased  by  his  younger  brother,  no  sub- 
sequent judges  would  scruple  to  declare  that  such  prior 
determination  was  unjust,  was  unreasonable,  and  there- 
fore was  not  law.  So  that  the  law  and  the  opinion  of 
the  judge  are  not  always  convertible  terms,  or  one  and 
the  same  thing;  since  it  sometimes  may  happen  that  the 
judge  may  mistake  the  law.  Upon  the  whole,  however, 
we  may  take  it  as  a  general  rule  'that  the  decisions  of 
courts  of  justice  are  the  evidence  of  what  is  common  law' : 
in  the  same  manner  as,  in  the  civil  law,  what  the  em- 
peror had  once  determined  Was  to  serve  as  a  guide  for  the 
future."  * 

Blackstone's  statement,  in  short,  is  this:  The  Com- 
mon Law  consists  of  general  customs,  but  what  these 
customs  are  must  be  known  from  the  decisions  of  the 
courts;  former  precedents  must  be  followed,  a  decision  of 
a  court  makes  what  was  before  uncertain  and  indifferent 
a  permanent  rule,  which  subsequent  judges  must  follow; 
but  precedents  are  not  absolutely  binding,  they  can  be 
disregarded  when  flatly  absurd  or  unjust 

There  seems  little  occasion  to  find  fault  with  this  state- 
ment, so  far  as  it  concerns  the  force  and  effect  of  prece- 
dents as  a  source  of  Law,  but  Blackstone's  attempt  to 
carry  back  further  the  source  of  Law  into  general  cus- 

*1  Bl.  Com.  68-71. 


222          THE  NATURE  AND  SOURCES  OF  THE  LAW 

torn,  and  make  the  decisions  only  evidence  of  that  custom, 
is  unfortunate. 

The  notion  that  judicial  decisions  are  only  evidence  of 
a  preexisting  law  was  fallen  foul  of  by  Bentham;1  but 
in  Austin  it  found  its  most  influential  opponent.  It  may 
be  questioned  whether  he  has  not  devoted  himself  too 
exclusively  to  this  part  of  Blackstone's  remarks,  and 
neglected  the  substantially  accurate  view  of  the  force  and 
effect  of  precedents  which  the  commentator  gives.  Aus- 
tin speaks  of  "the  childish  fiction  employed  by  our  judges, 
that  judiciary  or  common  law  is  not  made  by  them,  but 
is  a  miraculous  something  made  by  nobody,  existing,  I 
suppose,  from  eternity,  and  merely  declared  from  time  to 
time  by  the  judges."  2 

Austin's  views  have  met  general  acceptance.3  But 
Blackstone  has  not  wanted  defenders.  One  of  the  latest 
attempts  to  rehabilitate  him  is  by  his  editor,  Professor 
Hammond.  As  perhaps  the  most  serious  attempt,  it  19 
worth  while  to  examine  it  in  detail.  It  is  contained  in  a 
note  to  the  passage  of  Blackstone  quoted  above.4 

Professor  Hammond  begins  by  saying  that  "no  passage 
of  Blackstone  has  been  the  object  of  more  criticism  and 
even  ridicule  than  this,"  and  he  refers  to  Austin,  to 
Digby's  History  of  the  Law  of  Keal  Property,  to  Pome- 
roy's  Municipal  Law,  and  "to  the  swarms  of  minor 
writers  who  have  held  Blackstone  up  to  ridicule  in  small 
books  and  legal  periodicals."  "Such  writers,"  he  goes 
on  to  say,  "may  not  think  themselves  answered  by  the 

*E.g.  Benth.  Works   (1843),  vol.  5,  p.  546;  vol.  6,  p.  552. 

*2  Jur.    (4th   ed.)    655. 

•See  Holland,  Jur.  (llth  ed.)  65. 

4  Hammond's  ed.   of   Blackstone,  pp.   213-226. 


JUDICIAL  PRECEDENTS  223 

unbroken  testimony  of  the  judges  themselves,  who  from 
the  earliest  Year-books  to  the  latest  reports  of  the  highest 
courts  have  unanimously  agreed  that  they  neither  made 
nor  could  make  new  law  in  deciding  cases  which  come  be- 
fore them  for  adjudication."  Though  it  is  doubtless  true 
that  judges  have  often  disclaimed  the  authority  to  make 
law,  Professor  Hammond's  two  citations  are  not  felicitous. 
In  Allot  of  Everurike  v.  Allot  of  Selly,  8  Edw.  III.  69, 
pi.  35  (not  8  Edw.  III.  6,  pi.  35,  fol.  327  as  cited) 
Herle,  J.,  speaking  of  a  point  as  "law  before  we  were 
born,"  says,  "we  will  not  change  that  law,"  which  is  cer- 
tainly no  proof  that  on  a  point  not  settled  he  could  not 
make  law.  The  other  passage  is  a  remark  in  1304  by 
the  same  man  (but  not  by  the  same  judge,  as  stated  by 
Professor  Hammond,  for  he  was  not  a  judge  till  sixteen 
years  later)  in  argument  to  the  court:  "The  judgment 
to  be  by  you  now  given  will  be  hereafter  an  authority 
in  every  quare  non  adrmsit  in  England,"  *  which,  so  far 
as  it  goes,  asserts  that  a  decision  of  the  judges  does  make 
Law. 

The  learned  editor  then  goes  on  to  say  that  the  effect 
of  the  contradiction  of  Blackstone's  doctrine  "in  making 
the  rule  of  law  identical  with  the  mere  point  decided  in 
the  given  case,  and  relieving  the  student  or  practitioner 
from  any  attempt  to  seek  for  underlying  principles,  will 
always  make  it  popular  with  busy  attorneys  and  students 
incapable  of  abstract  thought."  That  is  one  way  of  put- 
ting the  matter.  Another  way  of  putting  it  would  be 
to  say  that  the  effect  of  Blackstone's  doctrine  in  denying 

1  Prior  of  Lewes  v.  Bishop  of  Ely,  Y.  B.  32  Edw.  I.  (Horwood's  ed.) 
p.  32.  "Quare  non  ad  mis-it"  is  the  title  of  a  writ  concerning  church 
patronage. 


224          THE  NATURE  AND  SOURCES  OF  THE  LAW 

to  judicial  decisions  the  effect  of  making  law,  and  re- 
lieving the  student  or  practitioner  from  any  attempt  to 
find  out  from  them  the  law  which  they  have  made,  will 
always  make  it  popular  with  lazy  attorneys  and  students 
too  weak  in  intellect  to  grasp  the  real  significance  of  facts. 
But  perhaps  remarks  of  this  sort,  on  the  one  side  or  the 
other,  do  not  tend  to  aid  in  the  search  for  truth. 
Histor-  "The  position  of  Austin  and  his  followers  rests  upon 

judges  a  confusion  between  the  historical  and  scientific  aspect 
of  that  doctrine.  Historically  considered,  it  is  true  that 
our  judges  make  law."  Here  Professor  Hammond  gives 
away  his  whole  case.  "Historically  true,"  means  really 
true,  that  a  thing  is  a  fact.  To  say  that  a  thing  is  his- 
torically true  but  scientifically  false  means  that  it  is  a 
fact,  but  that  it  cannot  be  logically  fitted  into  a  certain 
system;  and  that  is  undoubtedly  the  case  here.  That 
judges  make  the  Law  is  a  fact,  and  it  is  true  that  this 
fact  cannot  be  logically  deduced  from  Blackstone's  doc- 
trine. Austin  and  his  followers  have  said,  "so  much  the 
worse  for  Blackstone's  doctrine."  Professor  Hammond 
says,  "so  much  the  worse  for  the  facts." 

The  learned  editor  then  proceeds,  in  the  strongest  and 
most  emphatic  manner,  to  declare  the  law-making  work 
of  the  judges.  He  says :  "In  the  historical  aspect  of  the 
system  they  have  actually  made  new  law."  And  then  he 
spoils  it  all.  "So  it  is  in  every  science.  We  can  trace 
historically  the  growth  of  creeds,  the  development  of 
theological,  philosophical,  or  scientific  truths  in  the  utter- 
ances of  successive  thinkers  and  students.  No  one  infers 
from  this  that  these  men  have  made  theological  or  scien- 
tific truth."  But  it  is  not  true  that  we  can  trace  his- 
torically the  development  of  theological,  philosophical, 


JUDICIAL  PRECEDENTS  225 

or  scientific  truths  in  the  utterances  of  successive  thinkers; 
what  we  can  trace  is  the  development  of  human  knowl- 
edge and  belief  of  those  truths;  but  the  truths  them- 
selves are  entirely  independent  of  human  knowledge  and 
belief,  and  therefore  "no  one  infers  from  this  that  these 
men  have  made  theological  or  scientific  truth."  Take 
the  doctrine  of  Transubstantiation :  the  origin  or  growth 
or  decline  of  belief  in  it  has  been  doubtless  dependent 
on  the  declarations  of  eminent  men,  but  whether  the  doc- 
trine is  true,  whether  the  mysterious  change  in  the  con- 
secrated elements  occurs,  is  independent  of  the  opinion 
of  Loyola  or  Luther  or  Zwingli.  So  the  laws  of  light 
do  not  depend  upon  the  ideas  of '  Sir  Isaac  Newton  or 
any  other  physicist  with  regard  to  them. 

"We  do  not  infer  that  philosophers  make  the  laws  of 
nature ;  how  then  can  we  infer  that  judges  make  the  law 
of  the  land  ?"  is  what  Professor  Hammond  says.  Because 
philosophers  do  not  make  the  laws  of  nature,  but,  as 
Professor  Hammond  has  just  said,  judges  do  make  "his- 
torically" the  laws  of  the  land.  Because  the  laws  of 
nature  are  independent  of  human  opinion,  while  the  Law 
of  the  land  is  human  opinion.  The  heavenly  bodies  have 
been  governed  by  the  same  laws  after  the  birth  of  Ptolemy 
and  Copernicus  and  Newton  that  they  were  before,  but 
the  English  people  have  not  been  governed  by  the  same 
Law  since  Lord  Mansfield's  time  that  they  were  before. 
His  decisions  have  made  that  to  be  Law  which  was  not 
Law  before,  and  the  Law  of  England  since  his  time  is 
different  from  what  it  would  have  been,  had  he  been  a 
man  of  a  different  cast  of  mind.1 

1  Compare  the  part  of  Lord  Stowell  in  the  creation  of  prize  law. 
Roscoe's  Life  of  Stowell,  pp.  49-52. 


226 


THE  NATURE  AND  SOURCES  OF  THE  LAW 


Conse- 
quences of 
Black- 
stone's 
theory 


Or,  to  take  an  instance  from  the  Constitutional  Law 
of  the  United  States,  suppose  Chief  Justice  Marshall  had 
been  as  ardent  a  Democrat  (or  Republican,  as  it  was  then 
called)  as  he  was  a  Federalist.  Suppose,  instead  of  hat- 
ing Thomas  Jefferson  and  loving  the  United  States  Bank, 
he  had  hated  the  United  States  Bank  and  loved  Thomas 
Jefferson, — how  different  would  be  the  Law  under  which 
we  are  living  to-day. 

It  is  quite  true,  as  Professor  Hammond  goes  on  to  say, 
that  the  courts  will  sometimes  refrain  from  making  new 
law.  No  one  has  ever  dreamed  of  denying  that  in  their 
law-making  power  they  are  confined  by  statutes  and  by 
the  decisions  of  their  predecessors,  and  no  one  has  ever 
thought  the  existence  of  such  confining  limits  to  be  "a 
childish  fiction,"  as  the  editor  complains. 

The  examples  which  Professor  Hammond  employs  to 
show  the  scientific  soundness  of  Blackstone's  theory,  and 
the  advantages  of  carrying  it  into  practice,  will  hardly 
seem  to  most  persons  to  have  been  happily  selected.  Sup- 
pose that  A.,  in  New  York,  makes  a  note  payable  in  New 
York  to  the  order  of  B. ;  that  B.,  in  New  York,  in  fraud 
of  A.,  transfers  the  note  to  C.,  as  collateral  security  for 
a  preexisting  debt ;  and  that  C.  sues  A.  in  New  York.  If 
C.  is  a  citizen  of  New  York,  he  will  fail ;  if  he  is  a  citizen 
of  New  Hampshire,  he  can  go  into  the  Federal  Court  and 
succeed. 

Again,  suppose  that  A.,  living  in  Newport  in  the  State 
of  Rhode  Island,  gives  property  to  B.,  to  pay  the  income 
to  C.,  A.'s  son,  for  life,  without  any  power  of  anticipa- 
tion on  C.'s  part  or  any  liability  for  his  debts;  and  that 
C.  makes  a  contract  with  D.,  a  Newport  butcher,  to  fur- 
nish him  with  meat,  and  then  refuses  to  pay  him.  D. 


JUDICIAL  PRECEDENTS  227 

gets  a  judgment  in  the  Rhode  Island  courts  against  C. 
and  tries  to  enforce  it  against  the  trust  fund.  If  B.  or 
C.  are  citizens  of  Rhode  Island,  D.  can  get  paid  for  his 
meat,  but  if  they  are  both  citizens  of  New  York,  they  can 
remove  the  case  into  the  Federal  Court,  and  C.  can  then, 
according  to  the  dictum  in  Nichols  v.  Eaton,1  cheat  his 
creditor  with  impunity. 

Now  I  am  not  here  considering  any  practical  advan- 
tages resulting  from  this  state  of  things,  nor  how  far 
it  is  the  natural  or  necessary  consequence  of  our  complex 
form  of  government.  But  certainly,  from  a  "scientific" 
point  of  view,  nothing  could  be  more  shocking.  It  seems 
a  recurrence  to  barbarism,  to  the  time  when  Burgundians, 
Visigoths,  and  Romans,  living  beside  each  other,  had  their 
own  separate  and  tribal  laws. 

And  how  did  this  state  of  things  have  its  origin  ?  Pro- 
fessor Hammond  truly  says  that  it  was  by  Story,  J.,  in 
Swift  v.  Tyson?  adopting  the  Blackstonian  theory:  "In 
the  ordinary  use  of  language  it  will  hardly  be  contended 
that  the  decisions  of  Courts  constitute  laws."  These  par- 
ticular consequences  of  Blackstone's  theory  are  hardly 
such  as  to  recommend  the  theory  itself. 

But  the  Supreme  Court  of  the  United  States  has,  since  Municipal 

bond  cases 

this  state  of  things  was  established,  been  compelled,  by 
what  Professor  Hammond  would  call  the  aspect  of  his- 
torical as  against  that  of  scientific  truth — that  is,  by  the 
stress  of  the  real  facts  of  life — to  abandon  the  theory  of 
Blackstone  in  a  most  important  class  of  cases,  those  con- 
cerning municipal  bonds.  I  do  not  undertake  to  estab- 
lish the  court's  consistency,  but  it  is  interesting  as  an 

*91  U.  S.  716. 

1 16  Pet.  1,  18.    See  p.  251,  post. 


228          THE  NATURE  AND  SOURCES  OF  THE  LAW 

example  of  how  an  elaborate  theory,  sustained  by  great 
names,  will  break  down  when  it  is  in  irreconcilable  con- 
flict with  facts. 

In  several  of  the  United  States,  bonds  were  issued  by 
towns  and  cities,  generally  in  aid  of  railroads;  the 
Supreme  Courts  of  the  States  declared  that  the  bonds  were 
validly  issued;  on  the  faith  of  these  decisions  the  bonds 
were  sold:  and  then  new  judges  were  elected  and  the 
bonds  were  declared  invalid.  Blackstone's  theory  was 
urged  with  great  force,  that  the  decisions  of  the  courts 
did  not  make  Law;  and  that  the  Law  must  be  taken  to 
have  been  always  what  the  latest  decisions  declared  it  to 
be.  But  the  Supreme  Court  ruled  otherwise,  and  has 
always  held  firmly  to  the  doctrine  that  if  a  contract,  when 
made,  was  valid  by  the  Law  as  then  laid  down  by  the 
courts,  its  obligation  could  not  be  impaired  by  any  subse- 
quent decision.  I  will  consider  these  cases  more  fully 
later.1 

Professor  Hammond  then  points  out  a  supposed  in- 
consistency in  Austin,  and  his  tacit  adoption  of  Black- 
stone's  views  while  criticizing  Blackstone  himself.  Black- 
stone,2  speaking  of  the  rescripts  of  the  Roman  Emperors, 
and  describing  their  character,  says:  "In  like  manner 
the  canon  laws,  or  decretal  epistles  of  the  popes,  are  all 
of  them  rescripts  in  the  strictest  sense.  Contrary  to  all 
true  forms  of  reasoning,  they  argue  from  particulars  to 
generals."  3 

Austin,  in  his  unmannerly  fashion,  adverts  to  this  as 

»P.  256,  post. 

*  1  Com.  59. 

•Austin  takes  Blackstone  as  if  speaking  of  the  Emperor's  decreta 
or  judgments  on  appeals,  and  not  of  their  rescripts  or  interlocutory 
advice  (p.  203,  ante),  but  for  the  argument  this  seems  immaterial. 


JUDICIAL  PRECEDENTS  229 

a  foolish  remark  (and  indeed  it  is  not  a  very  wise  one, 
nor  does  Professor  Hammond  seek  to  defend  it)  and 
he  goes  on:  "The  truth  is,  that  an  imperial  decrete 
of  the  kind  to  which  Blackstone  alludes  is  a  judicial 
decision  establishing  a  new  principle.  Consequently,  the 
application  of  the  new  principle  to  the  case  wherein  it  is 
established  is  not  the  decision  of  a  general  by  a  particular, 
but  the  decision  of  a  particular  by  a  general.  If  he  had 
said  that  the  principle  applied  is  a  new  principle,  and, 
therefore,  an  ex  post  facto  law  with  reference  to  that  case, 
he  would  say  truly.  But  the  same  objection  (it  is  quite 
manifest)  applies  to  our  own  precedents."  1 

Here,  says  Professor  Hammond,  is  a  logical  fallacy, 
for  in  assuming  that  the  principle  established  by  the  de- 
cision or  decrete  is  a  new  one,  Austin  contradicts  his 
own  statement  that  the  process  is  "the  decision  of  a 
particular  by  a  general,"  for,  "if  these  latter  words  mean 
anything,  it  is  that  the  principle  must  have  existed  before 
the  decision,  so  that  the  decision  may  have  been  made  by 
it." 

But  is  this  the  meaning?  Had  it  not  been  for  the 
difficulty  which  so  careful  a  reader  and  accurate  a  thinker 
as  Professor  Hammond  appears  to  find,  Austin's  mean- 
ing I  should  have  thought  quite  clear.  What  Austin 
says  is  this :  These  prayers  for  instructions  were  brought 
to  the  Emperors  in  cases  where  there  was  no  existing 
Law  which  could  guide  the  magistrate.  It  was  neces- 
sary, therefore,  to  make  a  new  Law,  or  the  case  would 
have  been  undecided,  but  instead  of  issuing  a  general 
ex  post  facto  statute,  the  Emperor  established  a  new  prin- 

'2  Jur.    (4th  ed.)    654. 


230 


THE  NATURE  AND  SOURCES  OF  THE  LAW 


before 
decision 


ciple  in  accordance  with  which  the  case  ought  to  be  de- 
cided, and  directed  a  decision  accordingly.  Whether  the 
Emperors  always,  in  fact,  acted  in  so  logical  and  philo- 
sophical a  manner  may  be  reasonably  doubted,  but  there 
appears  to  be  no  fallacy  in  Austin's  reasoning, 
sense  in  In  fact,  Professor  Hammond  has,  it  would  seem,  con- 

which  rule  .. 

must  exist  founded  two  things, — the  order  of  the  intellectual  pro- 
cesses that  go  on  in  a  judge's  mind  when  a  case  is  brought 
before  him,  and  the  succession  of  events  outside  of  his 
mind.  Suppose  a  matter  is  brought  before  the  judge, 
for  which,  "as  an  historical  fact,"  there  is  no  Law,  no 
rule  for  decision  in  existence;  and  disguise  the  matter 
as  we  will,  such  cases  are  not  infrequent.  If  the  judge 
is  a  sensible  and  conscientious  man,  he  will  not  decide 
the  case  by  rule  of  thumb,  but  will  endeavor  to  establish 
a  principle  on  which  such  cases  ought  to  be  decided,  and 
then,  having  determined  that  principle,  he  will  apply  it 
to  the  case.  But  all  this  has  no  tendency  to  prove  that, 
before  the  case  was  brought  into  court,  there  was  a  rule 
of  law  in  existence  governing  the  case;  in  fact,  it  dis- 
tinctly negatives  that  view,  and  reduces  it  to  a  pure 
fiction,  which  it  is. 

"Plainly,  his  [Austin's]  mistake  is  the  common  one 
of  confounding  the  principium  essendi  and  principium 
cognoscendi."  1  May  we  not  rather  say  that,  plainly,  his 
learned  editor's  mistake  is  to  assume  that,  because  a  judge 
has  decided  a  case  in  accordance  with  a  general  rule,  the 
rule  must  have  existed  before  the  case  came  into  court; 
and  this  mistake  is  strengthened,  if  not  caused,  by  the 
misleading  comparison  with  physical  science,  to  which 
reference  has  been  made. 

*The  existence  of  a  thing  and  the  fact  of  its  being  known. 


JUDICIAL  PRECEDENTS  231 

Professor  Hammond  then  sets  up  an  adversary  who 
says  if  the  Law  in  question  existed  before  the  decision 
of  the  court,  it  must  have  existed  from  eternity.  Over 
this  foolish  person  Professor  Hammond  wins  an  easy 
victory.  But  if  it  be  true,  as  it  undoubtedly  is,  that  the 
rule  of  Law  on  which  a  case  is  decided  may  have  existed 
before  the  case  comes  before  the  court,  and  yet  may  not 
have  existed  for  all  time,  that  carries  us  very  little  way 
towards  the  proposition  that  the  rule  of  Law  on  which  a 
case  is  decided  must  have  existed  before  the  case  itself. 

"The  doctrine  of  precedent,  correctly  stated,  forbids  the  Decisions 

,  ,         .  .         ,      .      often 

assumption  that  a  new  law  was  created  by  the  prior  deci-  change 

the  Law 

sion — or  that,  in  Austin  s  words,  the  imperial  decrete 
established  a  new  principle/  in  the  sense  of  creating  a  new 
law.  If  it  did,  and  the  present  case  arose  under  the  law 
so  created  by  the  precedent,  we  should  be  deciding  the 
later  case  by  a  different  law  from  that  under  which  the 
precedent  arose."  And  so  we  are.  Suppose  it  has  been 
generally  believed  that  an  action  will  lie  for  verbal  slander, 
but  upon  the  case  coming  before  the  court  of  final  appeal, 
they  decide,  perhaps  by  a  majority  of  one,  that  it  will 
not.  Does  not  any  later  case  come  before  a  judge  under 
a  different  state  of  the  Law?  Is  a  judge  in  the  same 
position  as  he  was  before  that  decision?  Is  there  not  a 
new  element  introduced?  How  must  the  Law  be  the 
same,  when  there  is  now  an  element,  all  but  necessarily 
conclusive,  which  there  was  not  before?  Professor  Ham- 
mond declares  we  must  not  say  that  the  Law  is  changed, 
because  such  change  cannot  be  reconciled  with  the  simplest 
rule  of  justice;  but,  say  what  we  will,  the  fact  is  that 
there  is  a  new  controlling  element  introduced  into  the 
Law.  One  can  understand  a  German  jurist  considering 


232          THE  NATURE  AND  SOURCES  OF  THE  LAW 

such  a  state  of  things  as  unjust,  and  therefore  refusing 
to  give  any  weight  to  Judicial  Precedents,  but  how  a 
Common  Law  lawyer,  who  regards  the  system  of  prec- 
edent with  complacency,  can  suppose  that  he  can  turn 
injustice  into  justice  by  inventing  a  fiction  is  a  remark- 
able instance  of  the  power  of  conventional  expressions. 

"The  falsity  of  Mr.  Austin's  theory  results  also  from 
a  correct  statement  of  the  true  nature  of  judicial  power" ; 
and  Professor  Hammond  goes  on  to  show  that  courts  are 
charged  with  executive  duties;  but  this  does  not  in  the 
least  tend  to  show  that  they  may  not  also  be  charged  with 
legislative  duties,  as  indeed,  in  the  case  of  their  power 
to  make  rules  for  practice,  is  notoriously  true.1 

I  do  not  understand  that  Professor  Hammond  thinks 
that  any  change  ought  to  be  made  in  the  mode  of  admin- 
istering justice;  if  the  judges  have  cases  come  before 
them  which  present  questions  for  whose  decisions  there 
are  no  rules,  I  do  not  understand  that  he  would  have 
the  judges  leave  the  cases  undecided,  or  that  he  would 
have  the  decisions  based  on  whim  or  instinct ;  but  he  deems 
it  important  that  the  judges  should  say,  and  that  the 
people  should  believe,  that  the  rules  according  to  which 
the  judges  decide  these  cases  had  a  previous  existence. 
Whether  it  is  desirable  that  such  remarks  should  be  made, 
or  whether,  if  made,  it  is  desirable  that  they  should  be 
believed,  or  whether  it  is  desirable  that  the  judges'  power 
and  practice  of  making  Law  should  be  concealed  from 
themselves  and  the  public  by  a  form  of  words,  is  a  matter 
into  which  I  do  not  care  to  enter.  The  only  thing  I  am 
Amcerned  with  is  the  fact.  Do  the  judges  make  Law? 

»P.  199,  ante. 


JUDICIAL  PRECEDENTS  233 

I  conceive  it  to  be  clear  that,  under  the  Common  Law     *t 
system,  they  do  make  Law.1 

The  opinions  of  another  writer  on  the  question  of  the  Mr. 

.  f  .    ,       .     ,  .^  .    .  Carter's 

law-making  power  of  the  judges,  a  writer  whose  opinions  theory 
deserve  to  be  treated  with  the  highest  respect,  remain  to 
be  considered.  Mr.  James  C.  Carter  published  an 
article 2  OB  "The  Ideal  and  the  Actual  in  the  Law,"  in 
which  he  maintained  that  the  judges  were  the  discoverers 
and  not  the  makers  of  the  Law.  That  excellent  man 
has  since  gone  to  his  rest,  but  there  has  lately  been  pub- 
lished a  book  entitled  "Law,  Its  Origin,  Growth  and  Func- 
tion," which  he  had  completed  before  his  death,3  and  which 
contains  his  matured  opinion  on  the  subject. 

Mr.  Carter,  at  an  earlier  period  of  his  life,  was  a 
strenuous  opponent  of  the  adoption  by  the  State  of  New 
York  of  Mr.  David  Dudley  Field's  Civil  Code.  In 
his  opposition  he  was  successful.  I  suppose  it  was  largely 
by  his  endeavors  that  the  State  was  saved  from  the  threat- 
ened danger.  The  remembrance  of  this  great  struggle 
was  always  in  his  mind,  and  was,  I  feel  sure,  the  raison 
d'etre  of  his  essay  and  of  his  book,  and  has  affected  his 
whole  point  of  view. 

The  main  thesis  of  Mr.  Carter's  essay  is  the  erroneous-  Judge- 
ness  of  the  theory  that  all  Law  proceeds  from  the  com-  and  the 

.  Sovereign 

mands  of  the  sovereign.  He  admits  fully  "that  all  the 
knowledge  which  we  really  have  of  the  law  comes  from 
the  judge,"  4  but  he  shrinks  from  saying  that  the  judge 
makes  Law,  because  he  fears  that  this  would  recognize 

*See  Maine,  Anc.  Law    (Pollock's  ed.)    34-37,  46;   Dicey,  Law  & 
Opinion   (2d  ed.)   491;  and  pp.  93-99,  ante. 

3  24  Am.  Law  Rev.  752. 
8  In  1905. 

4  24  Am.  Law  Rev.  758. 


234          THE  NATURE  AND  SOURCES  OF  THE  LAW 

the  theory  that  all  Law  comes  from  the  command  of 
the  sovereign.1  If  I  shared  the  fear,  I  should  be  equally 
unwilling  to  use  the  expression  that  judges  make  Law. 
But  is  this  objectionable  result  a  consequence  of  holding 
that  judges  make  Law  ? 

What  is  meant  by  judges  making  Law?  It  is  meant 
that  a  decision  suo  vigore,  without  regard  to  its  agree- 
ment or  disagreement  with  some  ideal,  is  a  source  of 
Law ;  not  the  only,  not  necessarily  the  controlling,  source 
of  Law,  but  something  which  has  an  independent  and 
not  merely  evidential  value.  To  decide  cases  is  the  nec- 
essary function  of  a  judge;  it  is  of  the  essence  of  judge- 
ship;  but  whether  a  judge  can  establish  precedents  or 
not  is  not  of  the  essence  of  judgeship.  In  England  judges 
have  the  power;  in  Germany,  generally,  they  have  not. 
The  sovereign  might  interfere  to  give  them  the  power, 
or  to  deny  them  the  power,  but  generally  he  has  not  inter- 
fered, and  therefore,  if  they  have  the  power,  it  does  not 
arise  from  the  command  of  the  sovereign  (unless  we  adopt 
the  theory  of  Austin  that  whatever  the  sovereign  permits 
he  commands,  a  theory  which  I  am  at  one  with  Mr.  Carter 
in  disapproving),  but  whether  decisions  shall  establish 
precedents  is  left  to  the  free  action  of  the  judicial  mind, 
affected  by  ideas  of  public  policy,  by  popular  custom,  and 
by  professional  opinion.  These  motives,  operating  on  the 
minds  of  English  and  American  judges,  have  led  them  to 
recognize  decisions  of  the  courts  as  sources  of  the  Law. 
Judges,  then,  may  make  Law,  i.e.  establish  precedents, 
and  yet  such  Law  may  not  be  the  product  of  the  sover- 

*See  pp.  85  et  sea.  ante. 


JUDICIAL  PRECEDENTS  235 

eign's  command,  and  therefore  the  dilemma  which  Mr. 
Carter  feels  does  not,  it  seems  to  me,  in  truth  exist. 

In  his  essay  Mr.  Carter  does  not  seem  to  regard  the 
effect  of  a  judicial  decision  as  evidential.  "Inquiry," 
he  says,  "is  made  by  the  judge  concerning  what  his  pre- 
decessors have  done,  and  if  he  finds  that  a  similar  state 
of  facts  has  been  considered  by  them  and  the  law  pro- 
nounced in  reference  to  it,  he  declares  the  same  rule." 
But  he  says  a  judge  rather  discovers  than  makes  the  Law. 
The  expression  "discovered"  throws  light  on  the  processes 
of  the  judicial  mind.  To  speak  of  "making'7  the  Law 
suggests  an  arbitrary  will,  while  to  speak  of  "discovering" 
it  suggests  the  process  of  reason  and  reflection.  Indeed 
Mr.  Carter  adopts  the  same  view  substantially  as  to  the 
legislature,  properly  so-called.  "Its  liberty  of  action  so 
far  exceeds  that  of  the  judicial  tribunals  as  to  justify, 
for  ordinary  purposes,  such  a  designation  of  its  functions 
[i.e.  making  Law]  ;  but  the  deeper  and  more  philosophical 
view  would  assimilate  its  office  more  nearly  to  that  per- 
formed by  the  judicial  tribunals,  namely,  of  affixing  the 
public  mark  and  authentication  upon  customs  and  rules 
already  existing,  or  struggling  into  existence,  in  the  habits 
of  the  people."  *  But  while  I  recognize  the  reason  which 
led  Mr.  Carter  to  use  the  word  "discover,"  and  also  the 
fact  that  the  word  "make"  may,  although  improperly, 
carry  with  it  a  suggestion  of  arbitrariness,  I  must  yet 
regret  Mr.  Carter's  substitution  of  the  term  "discovery" 
as  misleading. 

But,  in  his  posthumous  treatise,  Mr.  Carter  has  pressed  Law  as 

created 

the  idea  of  the  evidential  character  of  precedents  farther  by  custom 
than  in  his  essay.     The  theory  of  his  book  seems  to  be 
»24  Am.  Law  Rev.  766. 


236 


THE  NATURE  AND  SOURCES  OF  THE  LAW 


Often  no 
custom 
before 
decisions 


that  the  Law  is  created  by  custom;  that  when  the  judges 
declare  the  Law,  they  are  declaring  that  to  be  Law  which 
already  existed ;  and  that  the  declaration  is  only  evidence, 
though  a  high  kind  of  evidence,  of  the  Law.  If  this  be 
his  matured  opinion,  and  I  think  it  is,  I  must  say,  with 
all  diffidence,  I  cannot  agree  with  him.  Amicus  Plato, 
sed  magis  arnica  veritas. 

I  have  already  several  times  tried  to  point  out  the 
difference  between  a  discoverer  in  the  fields  of  physical 
science  and  a  judge.  A  discoverer  in  chemistry  does  not 
make  the  natural  law  which  he  discovers.  Water  was 
composed  of  oxygen  and  hydrogen  before  its  composi- 
tion was  discovered, — the  discovery  in  no  way  affected 
the  natural  law;  the  existence  of  the  natural  law  was 
entirely  independent  of  human  opinion, — but  the  Law 
of  the  land  is  made  up  of  human  opinion.  Expressions 
of  human  opinion  are  its  sources,  and  an  important  class 
of  those  expressions  of  opinions  are  the  declarations  of 
the  judges. 

It  is  very  easy  to  weave  plausible  general  theories,  but 
there  is  only  one  test  of  their  correctness.  Do  they  agree 
with  the  facts?  I  have  constantly  endeavored,  in  these 
lectures,  to  apply  that  test,  the  only  conclusive  test,  and 
to  determine  whether  a  theory  is  true  by  seeing  how  it 
fits  the  facts  of  a  concrete  case.  Let  us  apply  that  test 
here. 

In  the  year  1620,  the  court  of  King's  Bench  decided 
the  famous  case  of  Pells  v.  Brown.1  It  was  this:  Land 
was  devised  to  Thomas  Brown  and  his  heirs,  but  if  he 
died  without  issue  in  the  lifetime  of  his  brother  William, 
the  land  was  to  go  to  William  and  his  heirs ;  that  is,  Thomas 
'Cro.  Jac.  590. 


JUDICIAL  PRECEDENTS  237 

took  an  estate  in  fee  simple,  with  an  executory  devise, 
as  it  is  called,  over  to  William,  in  case  Thomas  should 
die  in  the  lifetime  of  William  without  issue.  Thomas 
parted  with  the  land  by  a  conveyance  known  as  a  com- 
mon recovery,1  and  the  question  was  whether  Edward 
Pells,  who  claimed  the  land  under  this  conveyance,  held 
it  subject  to  the  executory  devise  to  William  or  free  from 
it,  or,  in  other  words,  whether  an  executory  devise  after  a 
fee  simple  is  destructible  by  the  holder  of  the  fee. 

The  court,  by  three  judges  to  one,  decided  that  the 
executory  devise  continued,  that  Pells  took  the  land  sub- 
ject to  it,  that  Thomas  could  not  destroy  it;  and  so  the 
Law  has  been  held  ever  since.  Therefore,  in  England 
and  America,  future  contingent  interests  can  be  validly 
created  by  will.  This  is  by  no  means  a  necessary  state 
of  things.  In  Germany,  in  France,  in  Louisiana,  and 
generally,  I  believe,  where  the  Civil  Law  prevails,  future 
contingent  interests  are  allowed,  if  at  all,  only  to  a  very 
limited  extent.2 

Mr.  Carter,  I  understand,  would  say  that  this  doctrine 
as  to  the  validity  of  future  interests  was  created  by  cus- 
tom, and  was  Law  before  the  case  of  Pells  v.  Brown. 
]^ow,  what  is  custom  ?  Custom  is  what  is  generally  prac- 
ticed in  a  community  and  believed  by  the  community  gen- 
erally to  be  a  proper  practice. 

Now  is  it  conceivable  that  in  England,  at  the  beginning 
of  the  seventeenth  century,  a  belief  was  prevalent  in  the 
community  that  an  executory  devise  could  not  be  de- 
stroyed by  a  common  recovery  with  a  single  voucher? 

JA  "common  recovery"  was  a  collusive  suit  at  law,  highly  techni- 
cal in  its  procedure,  which  was  used  as  a  means  of  conveying  land. 
2  Bl.  Com.  357-364,  533. 

'Gray:  Rule  against  Perpetuities,  §§  753-772. 


238          THE  NATURE  AND  SOURCES  OF  THE  LAW 

Why,  there  was  not  one  man  in  England  out  of  ten  thou- 
sand, not  one  out  of  fifty  thousand,  who  had  any  belief 
upon  the  question,  or  who  would  even  have  understood 
what  it  meant.  To  say  that  there  was  a  custom  that  future 
contingent  interests  were  indestructible  is  a  baseless 
dream,  invented  only  to  avoid  the  necessity  of  saying  that 
judges  make  Law. 

But,  further,  before  the  decision  in  Pells  v.  Brown, 
so  far  was  there  from  being  a  general  opinion  in  the 
community  that  executory  devises  were  indestructible, 
there  was  no  such  opinion  among  the  judges.  One  judge 
of  the  four,  as  I  have  said,  dissented,  and  the  decision  was 
far  from  meeting  a  favorable  reception  among  the  judicial 
brethren.  In  Scattergood  v.  Edge?  Powell,  J.,  said  that 
the  notion  that  an  executory  devise  was  not  bgrred  by  a 
recovery  "went  down  with  the  judges  like  chopped  hay" ; 
and  Treby,  C.  J.,  said,  "These  executory  devises  had  not 
been  long  countenanced  when  the  judges  repented  them; 
and  if  it  were  to  be  done  again,  it  would  never  prevail" ; 
and  stronger  statements  were  made  by  Latch,  as  counsel 
in  Gay  v.  Gay.2  But  the  point  having  been  decided  by 
the  court  in  favor  of  executory  devises,  the  Law  has  stood 
so  ever  since. 

How,  in  the  face  of  all  this,  is  it  possible  to  say  that 
the  judges  in  Pells  v.  Brown  only  declared  Law  which 
custom  had  previously  created,  or,  to  use  an  expression 
of  which  Mr.  Carter  is  very  fond,  that  the  fair  expecta- 
tion of  the  community  was  that  a  doctrine  should  have 
in  its  favor  three  judges  out  of  four,  instead  of  one  out 
of  four?  It  is  possible  to  make  such  a  statement,  but 

1 12  Modern,  278. 

•Styles,  258.    See  Gray,  Hule  against  Perpetuities,  §  159. 


JUDICIAL  PRECEDENTS  239 

what  support  has  it  in  the  real  facts?  If  Law  was  ever 
made  by  any  one,  Montagu,  C.  J.,  and  Chamberlayne  and 
Houghton,  JJ.,  made  Law. 

It  is  hard  to  overestimate  the  importance  of  the  Law 
which  these  three  men  made.  It  lies  at  the  root  of  the 
Law  of  future  interests.  Millions  upon  millions,  prob- 
ably billions  upon  billions,  of  property  have  gone  to  persons 
to  whom  they  would  not  have  gone,  if  two  of  the  judges 
of  the  majority  had  agreed  with  their  brother  Doderidge. 

And  this  is  only  one  case  out  of  thousands  where  the 
Law  stands  as  it  does  to-day  upon  the  opinions  of  indi- 
viduals in  judicial  position  on  matters  as  to  which  there 
was  no  general  practice,  no  custom,  no  belief,  no  expecta- 
tion in  the  community. 

It  has  been  a  matter  greatly  disputed,  how  much  or  Part 
how  little  part  is  played  in  the  development  of  human  mdividvai 
affairs  by  individuals.  It  is  contended  that  the  Zeitgeist, 
or  the  great  underlying  forces  and  instincts  of  human 
nature,  will  have  their  way  without  regard  to,  and  in 
spite  of,  the  acts  of  individuals;  that  such  acts  are  but 
ripples  upon  the  mighty  stream  of  time.  I  do  not  deny 
that  there  is  truth  in  this.  It  may  be  that  the  ultimate 
goal  of  human  experience  will  be  the  same  as  if  Caesar  or 
Napoleon  or  Mahomet  had  never  existed.  That  may  be 
true  of  the  ultimate  goal ;  but  the  road  by  which  humanity, 
through  long  periods  of  its  history,  will  travel  towards  ita 
goal  is  largely  determined  by  the  beliefs,  the  opinions,  the 
acts,  of  great  men. 

And  not  of  great  men  alone ;  very  small  men  may  pro- 
duce great  results ;  it  was  a  very  small  man  who  murdered 
Henry  IV,  a  very  small  man  who  murdered  President 
Lincoln.  Especially  is  this  true  if  a  small  man  happens 


240          THE  NATURE  AND  SOURCES  OF  THE  LAW 

to  be  put  in  a  great  place.  I  know  no  reason  to  suppose 
that  Montagu,  C.  J.  and  Chamberlayne  and  Houghton, 
JJ.  were  in  any  way  great  men,  but  the  fact  that  they 
said  one  thing  rather  than  another  has  seriously  affected 
the  course  of  human  affairs  in  an  important  department 
of  the  Law. 


CHAPTER  X 

JUDICIAL  PRECEDENTS  IN  THE  UNITED  STATES 

TURNING  now  from  the  doctrine  as  to  Judicial  Prec- 
edents in  the  Common  Law  in  general,  let  us  see  what 
modifications,  if  any,  that  doctrine  has  received  in  the 
United  States.  Besides  the  four  points  as  to  the  English 
Common  Law  discussed  in  the  last  chapter,  a  question 
arises  in  the  United  States  with  reference  to  the  weight 
in  one  of  the  States  of  decisions  made  by  the  Federal 
courts  or  the  courts  of  another  State  or  of  England;  so 
that  we  have  now  to  consider  five  matters  in  the  Law  of 
the  United  States: — 

1.  How  great  is  the  authority  of  a  decision  in  the  court 
which  made  it,  or  in  a  court  of  coordinate  jurisdiction? 

2.  Is  there  any  court  which  is  absolutely  bound  by  its 
own  decisions  ? 

3.  Does  a  lower  court  ever  decide  in  opposition  to  a 
higher  court  of  appeal  ? 

4.  What  is  the  weight  in  the  courts  of  one  jurisdiction 
of  decisions  made  in  the  courts  of  another  jurisdiction? 

5.  Can  decisions  of  the  courts  be  considered  as  sources 
of  Law? 

First.     The  general  rule  and  practice  as  to  the  author-  Decision 

...  •,-•,  -i     .  .  ln  same  or 

ity  of  a  decision  in  the  court  which  made  it,  or  in  a  court  coordinate 

court 

of  coordinate  jurisdiction,  is  substantially  the  same  in  the 
United  States  as  in  England.     Naturally,  owing  to  the 

241 


242 


THE  NATURE  AND  SOURCES  OF  THE  LAW 


No  court 
bound 
absolutely 
by  Its  own 
decision 


character  of  the  people  and  of  the  institutions,  the  weight 
attached  to  Judicial  Precedents  is  somewhat  greater  in 
England  than  in  America,  but  the  difference  hardly  admits 
of  any  precise  statement,  and  it  does  not  seem  worth 
while  to  attempt  it.  The  peculiar  position  of  the  State 
and  Federal  courts  towards  each  other  will  be  discussed 
farther  on. 

Second.  Is  there  any  court  in  the  United  States  which 
is  absolutely  bound  by  its  own  decisions?  We  have  seen 
that  the  House  of  Lords  will  not  overrule  its  own  prior 
decision,  but  will  leave  the  matter  with  the  legislature.1 
No  such  doctrine  prevails  in  America;  the  highest  courts 
in  the  respective  States  and  the  Supreme  Court  of  the 
United  States  all  consider  that  they  have  the  power,  how- 
ever inexpedient  it  may  be  to  exercise  it,  to  depart  from 
their  former  rulings. 

Thus,  the  Supreme  Court  of  the  United  States  has 
overruled  its  previous  decisions  in  matters  of  the  greatest 
importance.  In  1825,  the  court  decided  that  the  Ad- 
miralty Jurisdiction  did  not  extend  to  the  great  rivers 
above  the  ebb  and  flow  of  the  time,2  and  reaffirmed  the 
doctrine  in  183Y.3  But  in  1851  it  overruled  these  cases 
and  held  that  the  Admiralty  Jurisdiction  extends  over 
navigable  rivers.4  Again,  in  18YO,  that  court  held  the 
Legal  Tender  Act  to  be  unconstitutional.5  The  judges 
stood  five  to  three.  One  of  the  majority  resigned,  and 
two  new  judges  were  appointed;  the  question  was  again 
brought  up  in  another  case,  and  the  court,  in  1871,  over- 

*P.  217,  ante. 

'The  Thomas  Jefferson,  10  Wheat.  428. 

•The  Orleans,  11  Pet.  175. 

*The  Genesee  Chief,  12  How.  443. 

•  Hepburn  v.  GfriswoW,  8  Wall.  603. 


JUDICIAL  PRECEDENTS  IN  THE  UNITED  STATES   243 

ruled  its  former  decision,  the  two  new  judges  uniting 
with  the  previous  minority  of  three,  and  turning  it  into  a 
majority  of  five.1  Great  feeling  prevailed  in  some 
quarters  as  to  the  supposed  mode  in  which  this  change 
had  been  brought  about;  but  the  power  of  the  court  was 
not  questioned. 

Third.     The  same  rule  as  to  the  duty  of  a  lower  court  Decision 

11.  i     i  i  1-1  -iin  higher 

to  follow  a  precedent  established  by  a  higher  court  prevails  court 
in  America  as  in  England.    It  has  been  said  in  the  United 
States  that  a  judgment  made  by  an  equally  divided  court, 
though  conclusive  in  the  particular  case,  should  have  no 
weight  attached  to  it  as  a  precedent.2 

Fourth.     In  any  one  of  the  United  States,  the  deci-  Decision 

e-\  in  an°ther 

sions  of  the  courts  of  another  fetate  are  recognized  as  state 
determining  the  Law  of  such  other  State,  according  to 
the  general  doctrine  of  the  Common  Law.  As  to  their 
authority  in  the  former  State  on  its  own  Law,  it  does 
not  seem  that  they  can  properly  have  a  greater  weight 
than  the  opinions  of  equally  learned  non-judicial  persons 
who  have  had  the  same  advantages  and  same  motives  for 
arriving  at  a  just  conclusion. 

In  one  way,  indirectly,  they  do  carry  a  greater  weight; 
they  have  authority  as  settling  the  Law  for  the  States 
in  which  they  are  made,  and  it  is  a  reason,  and  a  strong 
reason,  why  Law  should  be  established  in  a  State  in  a 
certain  way  that  it  is  settled  in  the  other  States  in  the 
same  way. 

Another  interesting  point  arises  from  the  fact  that, 
in  several  States,  for  instance,  Maine  and  West  Virginia, 

1  Legal  Tender  Cases,  12  Wall.  457. 

1  See  Bridge  v.  Johnson,  5  Wend.  342,  372 ;  People  T.  Mayor  of  New 
York,  25  Wend.  252,  256;  Siting  v.  Bank  of  United  States,  11  Wheat. 
59,  78. 


244          THE  NATURE  AND  SOURCES  OF  THE  LAW 

the  systems  of  Law  are  derived  from  another  State,  of 
which  each  formed  originally  a  part  In  such  a  case, 
the  decisions  of  the  courts  of  the  parent  State,  made  be- 
fore the  separation,  continue  to  have  the  same  force  in 
the  new  State  that  they  had  in  the  old. 

English  The  question  as  to  the  authority  of  English  decisions 

in  the  United  States  is  more  difficult.  There  are  three 
periods  to  be  considered:  the  period  before  the  planting 
of  the  American  Colonies ;  the  period  between  the  planting 
of  the  Colonies  and  the  Revolution ;  the  period  subsequent 
to  the  Revolution. 

As  to  the  decisions  made  before  the  establishment  of 
the  English  Colonies  in  America,  there  seems  to  be  little 
doubt  that,  in  the  absence  of  legislation  to  the  contrary, 
they  must  be  considered  as  Judicial  Precedents.  It  is 
true  that  only  so  much  of  the  English  Law  as  was  appli- 
cable to  the  altered  conditions  of  life  was  adopted  here. 
This  doctrine,  which  is  generally  approved,  leaves  a  wide 
door  for  judicial  discretion  to  abrogate  or  alter  the  Com- 
mon Law,  but  does  not  affect  this  part  of  the  Law  more 
than  any  other,  the  Statute  Law,  for  instance.1 

It  is  clear  that  the  decisions  of  the  English  courts 
since  the  Revolution  cannot  strictly  have  any  weight  in 
the  United  States  as  precedents,  although  they  still  have 
a  value,  as  showing  the  opinion  of  learned  men  as  to  what 
the  Law  was,  or  ought  to  be. 

In  the  intervening  period  between  the  settlement  of 
the  country  and  the  Revolution,  there  lay,  in  general, 
no  appeal  to  the  English  courts,  nor  to  any  tribunal  hav- 
ing a  control  at  the  same  time  over  the  English  and  the 

»P.  196. 


JUDICIAL  PRECEDENTS  IN  THE  UNITED  STATES   245 

Colonial  courts,  and  it  seems,  therefore,  that  the  decisions 
of  the  English  courts  during  this  period  were  strictly  not 
precedents,  but  were  admissible  only  upon  the  grounds 
just  stated  for  considering  decisions  of  the  English  courts 
subsequent  to  the  Revolution. 

The  practical  difference,  however,  between  the  state 
of  things  which  existed  from  the  early  part  of  the  seven- 
teenth century  to  the  Revolution,  and  that  which  would 
have  existed  had  the  American  Colonies  been  subject  to  the 
jurisdiction  of  the  English  courts,  is,  so  far  as  concerns 
the  matter  in  question,  but  slight.  The  deference  felt  for 
the  learning  and  abilities  of  the  English  judges  was  so 
great,  and  the  value  attached  to  their  opinions  on  matters 
of  Law  so  high,  even  after  the  Revolution,  that  they  would 
have  carried  but  little  more  weight  had  they  been  true 
precedents. 

Since  the  beginning  of  the  last  century,  however,  this 
has  gradually  ceased ;  the  judgments  of  the  English  courts 
are  regarded  with  less  awe,  and  the  courts  in  America  do 
not  hesitate  to  depart  from  their  rulings.1  In  some  opin- 

1  However  excessive  may  have  been  the  deference  paid  to  English 
authority  by  courts  and  lawyers  in  some  parts  of  the  country,  there 
was  an  exhibition  of  the  contrary  feeling  in  other  places,  at  times 
when  political  feeling  against  England  was  high.  The  Kentucky 
Legislature,  in  1808,  enacted  "That  all  reports  and  books  containing 
adjudged  cases  in  the  Kingdom  of  Great  Britain,  which  decisions 
have  taken  place  since  the  4th  day  of  July  1776,  shall  not  be  read 
nor  considered  as  authority  in  any  of  the  courts  of  this  Common* 
wealth,  any  usage  or  custom  to  the  contrary  notwithstanding." 
Morehead  &  Brown's  Stats.  613.  •  The  attempt  was  made  in  the  leg- 
islature to  prohibit  reference  to  English  decisions  of  any  date. 
Schurz,  Life  of  Henry  Clay,  vol.  1,  p.  49.  There  were  similar 
statutes  in  Pennsylvania  and  New  Jersey.  Loyd,  Early  Courts  of 
Penna.  150;  Professor  Pound,  48  Am.  Law  Rev.  676,  680.  See  Sulli- 
van, Land  Titles  in  Massachusetts,  337.  In  the  same  year  in 
which  this  Kentucky  statute  was  passed,  the  case  of  Hickman  v, 
Boffman  (Hard.  348,  364)  came  before  the  Court  of  Appeals.  Coun- 
sel offered  to  read  from  3  East  part  of  an  opinion  which  recapitu- 


246    THE  NATURE  AND  SOURCES  OF  THE  LAW 

ions  in  the  United  States  the  judges  strive  to  show  that 
a  doctrine  which  they  disapprove  has  come  into  the  Eng- 
lish Law  since  the  Revolution,  but  the  true  question  would 
seem  to  be:  Has  it  come  in  since  the  founding  of  the 
Colonies  ? 

lated  the  adjudged  cases.  The  Chief  Justice  stopped  him.  Counsel 
urged  that  they  did  not  reply  upon  the  opinion,  that  they  only  used 
the  book  to  show  what  other  books  contained,  and  that  the  legisla- 
ture had  no  more  power  to  pass  the  statute  than  they  would  have  to 
prohibit  a  judge  the  use  of  his  spectacles.  But  the  court  said: 
"The  book  must  not  be  used  at  all  in  court;"  and  a  like  decision 
was  made  later  in  the  same  year.  Oallatin  v.  Bradford,  Hard.  365  n. 
In  1821  the  Kentucky  court  began  to  show  a  disposition  to  evade, 
if  not  to  disregard  the  statute.  In  ~Noble  v.  Bank  of  Kentucky 
(3  A.  K.  Marsh.  262,  264),  Boyle,  C.  J.,  said:  "The  use  of  English 
post-revolutionary  cases  in  the  courts  of  this  country  having  been 
proscribed  by  the  legislature,  we  can  avail  ourselves  of  the  light 
those  cases  have  shed  upon  the  point  now  in.  controversy  only 
through  the  medium  of  the  elementary  treatises  upon  the  subject." 
He  then  referred  to  a  late  edition  of  Chitty  on  Bills  as  containing 
decisions  in  point,  and  added:  "We  do  not  suppose  that  this  rule 
ought  to  be  received  here,  merely  because  it  is  the  established  rule  in 
England ;  but  we  apprehend  the  rule  is  intrinsically  proper ;  and 
it  is  certainly  no  slight  confirmation  of  its  intrinsic  propriety  that 
it  has  been  sanctioned  by  the  enlightened  tribunals  of  the  most  com- 
mercial country  in  the  world."  In  the  same  year  the  court  appear 
openly  to  neglect  the  Statute  by  quoting  "an  able  opinion"  of  Lord 
Redesdale,  salving  their  conscience,  perhaps,  by  omitting  to  give 
the  place  where  the  opinion  can  be  found.  Reed  v.  Bullock,  Lit.  Sel. 
Cas.  510,  512.  But  in  1823,  Mr.  Littell,  the  reporter,  in  the  preface 
to  the  first  volume  of  his  reports,  although  he  speaks  of  the  statute 
with  contempt,  says  that  it  has  been  "very  generally  acquiesced 
in."  Gradually,  however,  it  came  to  be  generally  disregarded:  thus, 
for  instance,  in.  the  12th  volume  of  B.  Monroe's  reports,  containing 
cases  decided  in  1851,  the  year  before  the  Revised  Statutes,  there 
are  a  dozen  or  more  references  by  name  and  place  made  by  the 
court  itself  to  post-revolutionary  decisions  in  England,  although  ref- 
erence to  cases  of  all  kinds  are  rather  sparse.  Indeed  this  Kentucky 
statute  seems  the  nearest  approach  in  a  Common  Law  country  to  a 
Statute  abrogated  by  desuetude.  See  Dembitz,  Kentucky  Jurispru- 
dence, 7,  8.  In  the  Revised  Statutes  of  Kentucky  adopted  in  1852 
we  find  the  provision  in  an  emasculated  form:  "The  decisions  of 
the  courts  of  Great  Britain,  rendered  since  the  fourth  day  of  July, 
one  thousand  seven  hundred  and  seventy  six,  shall  not  be  of  bind- 
ing authority  in  the  courts  of  Kentucky,  but  may  be  read  in  court 
and  have  such  weight  as  the  judges  may  think  proper  to  give  them." 
C.  61,  §  1. 


JUDICIAL  PRECEDENTS  IN  THE  UNITED  STATES   247 

A  highly  respectable  writer  has  asserted  that  the  deci- 
sions of  the  English  courts  were  binding  precedents  down 
to  the  Revolution:  "While  colonization  continued — that 
is  to  say,  until  the  war  of  the  Revolution  actually  com- 
menced,— these  decisions  were  authority  in  the  Colonies, 
and  the  changes  made  in  the  common  law  up  to  the  same 
period  were  operative  in  America  also  if  suited  to  the 
condition  of  things  here."  l  But  the  only  support  to  the 
doctrine  appears  to  be  a  dictum  of  Chief  Justice  Mar- 
shall. In  the  case  of  Cathcart  v.  Robinson,2  Cathcart, 
having  made  a  voluntary  conveyance  to  his  wife,  made  a 
subsequent  conveyance  to  Robinson.  The  Supreme  Court 
found  the  conveyance  to  the  wife  to  be  actually  fraudu- 
lent. It  was,  therefore,  unnecessary  for  it  to  consider 
whether  the  English  doctrine,  that  a  later  conveyance 
absolutely  avoids  a  former  voluntary  conveyance,  without 
actual  fraud,  was  Law.  The  Chief  Justice  says  that  at 
the  time  of  the  Revolution  this  doctrine  seems  to  have 
been  settled,  and  that  later  decisions  go  too  far  and  ought 
not  to  be  followed.  "The  received  construction  in  Eng- 
land at  the  time  they  [British  Statutes]  are  admitted  to 
operate  in  this  country,  indeed  to  the  time  of  our  separa- 
tion from  the  British  Empire,  may  very  properly  be  con- 
sidered as  accompanying  the  statutes  themselves,  and 
forming  an  integral  part  of  them.  But,  however  we  may 
respect  subsequent  decisions,  and  certainly  they  are  en- 
titled to  great  respect,  we  do  not  admit  their  absolute 
authority."  I  am  aware  of  no  case  where  a  court  has 
felt  itself  bound  to  decide  against  its  own  opinion  by 

'Cooley,  Const.  Lim.  (7th  ed.)  53. 
*  5  Pet.  263,  279  et  aeq. 


248 


THE  NATURE  AND  SOURCES  OF  THE  LAW 


Decisions 
as  sources 
of  Law: 
Federal 
and  State 
courts 


reason  of  an  English  judgment  given  between  the  coloniza- 
tion and  the  Revolution.1 

Fifth.  Are  decisions  of  the  courts  to  be  properly  con- 
sidered in  the  United  States  as  sources  of  Law  ?  Whether 
decisions  are  to  be  considered  as  true  sources  of  Law,  or 
whether  they  are  only  evidence  of  what  the  Law  is,  is 
a  question  which  the  relations  of  the  Federal  to  the  State 
courts  have  brought  to  the  front  as  a  practical  matter, 
by  the  discussions  upon  the  weight  to  be  attributed  by 
the  Federal  tribunals  to  the  decisions  of  the  State  courts. 
The  discussion  has  taken  place  principally  in  contro- 
versies between  citizens  of  different  States  in  which  the 
Federal  courts  have  jurisdiction  concurrent  with  that  of 
the  State  courts. 

The  Federal  and  State  courts  are  the  judicial  organs 
of  different  political  communities,  and  they  are  subject 
to  the  statutes  passed  by  the  legislatures  of  the  communi- 
ties of  which  they  are  respectively  the  organs;  and  if 
Congress  should  pass  statutes  for  the  conduct  of  the  Federal 
courts  which  were  in  conflict  with  those  of  any  or  of 
all  the  States, — for  instance,  that  writing  should  not  be 
a  necessary  requisite  to  the  validity  or  enforcement  of  any 
contract, — it  may  be  that  a  State  Statute  of  Frauds  would 
not  be  a  defence  to  an  oral  contract,  say,  for  the  sale  of 
land,  in  any  Federal  tribunal.  There  seems  to  be  nothing 
in  the  express  language  of  the  Constitution  to  forbid 
such  a  statute.  And  in  all  matters  of  procedure  and 
evidence  the  Laws  of  the  States  have  been  dealt  with  by 
Congress  at  their  pleasure.  For  instance,  procedure  in 

JOn  the  whole  subject  of  adoption  of  the  English  Common  Law, 
and  the  authority  of  English  decisions  in  the  U.  S.,  see  articles  by 
Professor  Pope,  in  24  Harvard  Law  Rev.  6 ;  and  Professor  Keinsch,  in 
Select  Essays  in  Anglo-American  Legal  History,  367.  r- 


JUDICIAL  PRECEDENTS  IN  THE  UNITED  STATES   249 

equity  is  the  same  in  all  the  Federal  courts,  whatever  be 
the  practice  of  the  courts  of  those  States  in  which  the 
Federal  tribunals  sit.1 

But  in  the  absence  of  Congressional  legislation  to  the 
contrary,  the  position  of  the  Federal  courts  would  seem 
to  be  this:  Those  courts  are  not  (with  the  exception  of 
the  Supreme  Court  in  a  few  cases)  courts  of  appeal  from 
the  State  courts.  They  are  courts  substituted  in  certain 
cases  for  the  ordinary  State  courts.  They  are  coordinate 
with  the  State  courts.  The  Federal  and  State  courts  are 
independent,  with  no  common  superior ;  they  derive  their 
authority  from  different  political  bodies. 

The  Federal  courts  were  constituted,  not  to  avoid  the 
danger  of  the  State  courts  laying  down  improper  rules, 
but  to  avoid  the  danger  of  the  State  courts  applying  their 
rules  unfairly  to  the  advantage  of  their  own  citizens. 
As  both  classes  of  courts  are  exercising  their  functions 
in  the  same  territory,  it  is  desirable  that  they  should  apply 
the  same  rules,  that  is,  the  same  Law;  and  since  the 
Federal  jurisdiction  is  of  an  exceptional  character,  it 
would  also  seem  desirable  that  the  Federal  courts  should 
draw  their  rules  from  the  same  sources  from  which  the 
State  courts  draw  theirs,  namely,  from  the  statutes  of  the 
State  legislatures  and  the  decisions  of  the  State  courts. 
Such  would  seem  to  have  been  the  right  position  of  the 
Federal  courts,  even  in  the  absence  of  special  legislation 
by  Congress  on  the  subject. 

Congress  has  legislated,  but  its  legislation  has  been 

1  Whether  the  doctrine  that  the  limits  of  equity  jurisdiction  have 
been  fixed  by  Congress  and  that  no  State  legislature  can  change 
them,  was  really  called  for  by  any  Act  of  Congress,  and,  if  it  was, 
whether  the  doctrine  has  been  applied  consistently  by  the  Supremt 
Court,  is  not  a  matter  of  inquiry  here. 


250           THE  NATURE  AND  SOURCES  OF  THE  LAW 

confirmatory  of  this  position.  In  the  formation  of  the 
Constitution  and  its  ratification  by  the  States,  the  powers 
of  the  Judiciary  attracted  comparatively  little  attention, 
and  that  little  was  mostly  directed  to  supposed  dangers 
which  have  since  shown  themselves  chimerical;  but  by 
the  Judiciary  Act,  U.S.  St.  1789,  c.  20,  §  34,  it  was 
enacted  that  "the  laws  of  the  several  states,  except  where 
the  Constitution,  treaties  or  statutes  of  the  United  States 
shall  otherwise  require  or  provide,  shall  be  regarded  as 
rules  of  decision  in  trials  at  common  law  in  the  courts 
of  the  United  States  in  cases  where  they  apply."  Pro- 
cedure in  cases,  civil  and  criminal,  has  been  dealt  with^ 
as  I  have  said,  by  later  Acts  of  Congress,  but  the  section 
cited  has  remained,  without  addition  or  alteration,  the  only 
statute  touching  the  substantive  Law  on  this  point. 

The  question  obviously  presented  by  Sec.  34  of  the 
Judiciary  Act  was  the  meaning  of  "the  laws"  of  a  State. 
Did  it  mean  the  body  of  rules  which  the  State  courts 
applied  in  deciding  cases,  or  was  its  meaning  limited  to 
the  statutes  of  the  State  ?  To  use  the  German  expression, 
did  it  mean  Recht  or  Gesetze?  The  difference  between 
"the  Law,"  which  generally  means  the  body  of  rules, 
and  "a,  law,"  which  generally  means  a  statute,  has  been 
noted.1  The  term  here,  "the  laws,"  is  ambiguous,  and 
lends  itself  to  either  construction. 

That  the  Congress  which  passed  the  Judiciary  Act  in- 
tended to  limit  "the  laws"  to  statutes,  seems  very  im- 
probable; if  for  no  other  reason,  because  in  many  of 
the  States  the  statute  Law  was  so  meagre;  and  for  the 
first  fifty  years  of  the  Government  no  such  limitation  was 

aSee  p.  87,  ante. 


JUDICIAL  PRECEDENTS  IN  THE  UNITED  STATES    251 

put  on  the  expression  "the  laws"  by  the  Supreme  Court 
of  the  United  States.  In  no  case  did  that  court  sanction 
a  refusal  by  a  Federal  court  to  follow  a  rule  laid  down  by 
the  State  courts.  It  is  to  be  observed,  however,  that  the 
only  cases  during  this  period  which  came  before  the  Su- 
preme Court  where  any  question  as  to  following  the  de- 
cisions of  a  State  court  was  presented,  were  cases  con- 
cerning land  or  involving  the  interpretation  of  a  State 
constitution  or  statute. 

In  the  year  1842,  the  case  of  Swift  v.  Tyson  l  came 

J  , 

before  the  Supreme  Court.     It  was  a  suit  against  the 

acceptor  of  a  bill  of  exchange,  which  had  been  accepted 
in  New  York.  The  plaintiff  had  taken  the  bill  in  pay- 
ment of  a  preexisting  debt,  and  the  question  was  whether 
he  was  to  be  considered  a  purchaser  for  value.  Judge 
Story,  who  delivered  the  opinion  of  the  court,  after 
speaking  of  the  decisions  of  the  New  York  State  courts 
as  not  being  clear  in  favor  of  the  defendant,  went  on  to 
say  that,  "admitting  the  doctrine  to  be  fully  settled  in 
New  York,"  it  would  not  bind  the  Supreme  Court  of 
the  United  States;  and  that  Sec.  34  of  the  Judiciary  Act 
was  strictly  limited  to  local  statutes  and  local  usages,  and 
did  not  extend  to  contracts  and  other  instruments  of  a 
commercial  character. 

The  doctrine  of  Swift  v.  Tyson  has  not  only  been  main- 
tained by  the  Supreme  Court,  but  it  has  been  extended, 
though  with  many  vacillations,  from  "general  commercial 
Law,"  through  "rules  of  Common  Law,"  and  "general 
Law,"  to  "general  Jurisprudence";  and  that  there  is  a 
distinction  in  the  treatment  of  the  decisions  of  State  courts 

*16  Pet.   1. 


252          THE  NATURE  AND  SOURCES  OF  THE  LAW 

in  Federal  tribunals,  that  some  will  be  followed  and  some 
not,  is  now  too  firmly  settled  to  be  shaken;  but  it  is  not 
easy  to  draw  the  line,  and  I  believe  that,  except  on  one 
occasion,  the  Supreme  Court  has  not,  since  Swift  v. 
Tyson,  given  any  reason  for  the  distinction,  or  under- 
taken to  justify  it.  It  has  said  sic  volo,  sic  jubeo,  and 
that  is  the  end  of  it 

The  sole  exception  is  in  Baltimore  &  Ohio  Railroad 
Co.  v.  Bough.1  It  was  there  held  that  liability  for  injury, 
in  Ohio,  to  the  fireman  of  a  locomotive  engine  by  the 
carelessness  of  the  engine-driver,  was  to  be  determined  by 
the  "general  Law,"  contrary  to  the  Law  laid  down  by 
the  Ohio  courts.  The  Supreme  Court  here,  for  the  first 
and  only  time,  gives  reasons  for  following  and  extending 
the  doctrine  of  Swift  v.  Tyson.  Those  reasons  are  two: 
First.  That,  notwithstanding  Swift  v.  Tyson,  Congress 
has  never  altered  Sec.  34  of  the  Judiciary  Act.  Second. 
The  second  reason  is  stated  in  the  form  of  a  question: 
"If  to  a  train  running  from  Baltimore  to  Chicago  it 
[the  Railroad  Company]  should,  within  the  limits  of 
the  State  of  Ohio,  attach  a  car  for  a  distance  only  within 
that  State,  ought  the  law  controlling  the  relation  of  a 
brakeman  on  that  car  to  the  company  to  be  different 
from  that  subsisting  between  the  brakemen  on  the  through 
cars  and  the  company  ?"  2  The  answer  to  this  last  ques- 
tion would  seem  to  be  another  question.  "Ought  the 
Law  controlling  the  relation  of  a  brakeman  on  a  car  to 
the  Company  to  be  different  from  the  Law  controlling 
the  relation  of  another  brakeman  on  the  same  car  to  the 

1149  U.S.  368    (1892). 
*P.  378. 


JUDICIAL  PRECEDENTS  IN  THE  UNITED  STATES    253 

Company,  because  one  has  his  domicil  in  Pennsylvania 
and  the  other  in  Ohio  ?" 

Mr.  Justice  Field  was  unwilling  to  carry  the  burden 
of  Swift  v.  Tyson  any  longer,  and  confessed  openly,  "mea 
culpaf  mea  maxima  culpa."  In  his  dissenting  opinion, 
he  declared  that  Swift  v.  Tyson  was  indefensible  from  the 
beginning.  He  says:  "I  am  aware  that  what  had  been 
termed  the  general  law  of  the  country — which  is  often 
little  less  than  what  the  judge  advancing  the  doctrine 
thinks  at  the  time  should  be  the  general  law  on  a  par- 
ticular subject — has  been  often  advanced  in  judicial 
opinions  of  this  court  to  control  a  conflicting  law  of  a 
State.  I  admit  that  learned  judges  have  fallen  into  the 
habit  of  repeating  this  doctrine  as  a  convenient  mode  of 
brushing  aside  the  law  of  a  State  in  conflict  with  their 
views.  And  I  confess  that,  moved  and  governed  by  the 
authority  of  the  great  names  of  those  judges,  I  have,  my- 
self, in  many  instances,  unhesitatingly  and  confidently, 
but  I  think  now  erroneously,  repeated  the  same  doctrine."  * 

Among  the  causes  which  led  to  the  decision  in  Swift  v. 
Tyson,  the  chief  seems  to  have  been  the  character  and 
position  of  Judge  Story.  He  was  then  by  far  the  oldest 
judge  in  commission  on  the  bench ;  he  was  a  man  of  great 
learning,  and  of  reputation  for  learning  greater  even  than 
the  learning  itself ;  he  was  occupied  at  the  time  in  writing 
a  book  on  bills  of  exchange,  which  would,  of  itself,  lead 
him  to  dogmatize  on  the  subject;  he  had  had  great  suc- 
cess in  extending  the  jurisdiction  of  the  Admiralty;  he 
was  fond  of  glittering  generalities;  and  he  was  possessed 
by  a  restless  vanity.  All  these  things  conspired  to  pro- 
duce the  result. 

»P.  401. 


254          THE  NATURE  AND  SOURCES  OF  THE  LAW 
swift  The  judgment  in  SwiH  v.  Tyson  seems  at  first  view 

v.  Tvton 


have  its  r°°t  in  the  Blackstonian  theory,  which  I  have 
»ajr  theory  previously  discussed,  that  judicial  decisions  are  not  sources 
of  the  Law,1  and,  indeed,  Judge  Story  says:  "In  the 
ordinary  use  of  language  it  will  hardly  be  contended  that 
the  decisions  of  Courts  constitute  laws.  They  are,  at 
most,  only  evidence  of  what  the  laws  are;  and  are  not 
of  themselves  laws."  But,  in  truth,  Swift  v.  Tyson 
seems  impossible  to  reconcile  with  this  theory. 

Suppose  the  English  High  Court  should  adopt  an  in- 
terpretation of  an  Act  of  Parliament;  that  interpretation 
would  be  adopted  by  all  the  lower  courts,  and  would  be 
enforced  by  the  executive  authority  ;  it  would  be  the  Law 
in  England.  Suppose  the  High  Court  should  announce 
a  rule  of  non-statutory  commercial  Law;  that  rule  would 
be  followed  by  all  the  lower  courts;  it  would  be  enforced 
by  the  executive  authority;  it  would  be  the  Law  in  Eng- 
land. If  the  Supreme  Court  of  the  United  States  had 
to  pass  upon  a  case  involving  that  statute,  or  upon  a  case 
T>n  a  contract  made  in  England  involving  that  general 
nile  of  non-statutory  commercial  Law,  they  would  look 
in  precisely  the  same  manner,  in  the  one  case  as  in  the 
other,  to  the  decisions  of  the  High  Court  to  determine 
the  Law  of  England. 

Suppose,  however,  that  the  Court  of  Appeals  in  New 
York  should  adopt  an  interpretation  of  a  New  York 
statute  or  a  rule  regarding  the  creation  of  easements; 
such  a  decision  would  be  followed  by  all  the  lower  courts 
of  the  State,  and  would  be  enforced  by  its  executive 
authority  ;  it  would  be  the  Law  in  New  York.  And  sup- 

JP.  219,  ante. 


JUDICIAL  PRECEDENTS  IN  THE  UNITED  STATES    255 

pose,  again,  that  it  should  announce  distinctly  a  rule  of 
non-statutory  commercial  Law;  such  a  decision  would  be 
followed  by  all  the  lower  courts  of  the  State,  and  would 
be  enforced  by  its  executive  authority;  it  would  be  the 
Law  in  New  York.  But  if  the  Supreme  Court  of  the 
United  States  had  to  pass  upon  a  case  involving  a  New 
York  statute  or  the  creation  of  easements  in  New  York, 
it  would  follow  the  decisions  of  the  Court  of  Appeals  of 
New  York,  while  if  called  upon  to  pass  upon  a  case  aris- 
ing in  New  York  under  the  non-statutory  commercial 
Law,  it  would  not  follow  the  State  decisions. 

If  "the  laws  of  a  State"  in  the  34th  section  of  the 
Judiciary  Act  mean  its  statutes  only,  then  the  decisions 
of  the  State  courts  should  stand  alike,  and  none  of  them 
should  have  the  binding  weight  that  is  now  given  to  some 
of  them.  If,  on  the  other  hand,  "the  laws"  are  to  include 
"decisions,"  the  Judiciary  Act  would  allow  no  difference 
between  them  and  statutes.  On  the  general  question, 
therefore,  whether  decisions  are  sources  of  the  Law,  the 
doctrine  of  the  Supreme  Court  of  the  United  States  in 
Swift  v.  Tyson  throws  no  light.  If  they  are  sources  of 
Law,  they  should  be  followed  even  when  dealing  with 
non-statutory  commercial  matters.  If  they  are  not,  then 
they  are  not  binding  when  dealing  with  real  estate  or 
the  construction  of  statutes.  The  doctrine  of  Swift  v. 
Tyson  is  an  anomaly,  and  does  not  lend  a  support  to  either 
theory. 

The  language  of  the  Supreme  Court  varies.  When  the 
court  wishes  to  depart  from  the  State  decisions,  it  says, 
with  Judge  Story,  that  the  decisions  of  courts  "are,  at 
most,  only  evidence  of  what  the  laws  are,  and  are  not 
of  themselves  laws."  On  the  other  hand,  when  the  court 


256          THE  NATURE  AND  SOURCES  OF  THE  LAW 

is  about  to  follow  the  decision  of  the  State  court,  it  says: 
"Inasmuch  as  the  States  have  committed  to  their  re- 
spective judiciaries  the  power  to  construe  and  fix  the 
meaning  of  the  statutes  passed  by  their  legislatures,  this 
court  has  taken  such  constructions  as  part  of  the  law 
of  the  State."  *  Decisions  of  the  State  courts  have  "a 
binding  force  almost  equivalent  to  positive  Law."  2  The 
interpretation  of  the  land  Laws  of  a  State  "becomes  a 
part  of  the  law  of  that  State,  as  much  so  as  if  incor- 
porated into  the  body  of  it  by  the  legislature."  3 

But  while  the  practice  of  the  Supreme  Court  of  the 
United  States  on  questions  like  that  raised  in  the  case 
of  Swift  v.  Tyson  is  anomalous,  and  is  inconsistent  alike 
with  the  theory  that  decisions  of  courts  make  the  Law. 
and  with  the  theory  that  they  are  only  evidence  of  the 
Law,  there  is  a  series  of  cases  in  that  court  of  the  greatest 
importance,  which  must  find  their  support  in  the  former 
theory.  These  cases  are  of  the  following  character :  The 
courts  of  a  State  have  declared  that  a  certain  class  of 
contracts  is  valid,  a  contract  of  the  class  is  subsequently 
entered  into,  but,  after  the  making  of  the  contract,  the 
State  courts  reverse  their  decisions  and  hold  that  such 
contracts  are  invalid.  Here,  if  the  decisions  are  simply 
evidence  of  the  Law,  the  Law,  as  declared  by  the  courts 
in  the  later  cases,  must  be  considered  to  have  been  the 
Law  from  the  beginning,  and  the  contract  to  have  been 
void  at  its  inception ;  if,  on  the  other  hand,  decisions  make 
the  Law,  then  the  contract  was  good  when  made.  The 

1  Carroll  v.  Carroll,  16  How.  275,  286. 
'League  v.  Egery,  24  How.  264,  267. 
« Christy  v.  Pridgeon,  4  Wall.  196,  203. 


JUDICIAL  PRECEDENTS  IN  THE  UNITED  STATES    257 

Supreme  Court,  in  these  cases,  has  thrown  over  fiction, 
has  insisted  upon  looking  at  the  truth  of  the  case,  and 
has  held  such  a  contract  valid.1 

In  1853,  Chief  Justice  Taney  said,2  "The  sound  and 
true  rule  is,  that  if  the  contract  when  made  was  valid 
by  the  laws  of  the  State,  as  then  expounded  by  all  de- 
partments of  its  government,  and  administered  in  its 
courts  of  justice,  its  validity  and  obligation  cannot  be 
impaired  by  any  subsequent  act  of  the  legislature  of  the 
State,  or  decision  of  its  courts,  altering  the  construction 
of  the  law." 

In  the  great  case  of  Gelpcke  v.  Dubuque  8  it  appeared 
that  the  Supreme  Court  of  Iowa  had  repeatedly  decided 
that  municipal  corporations  had  the  constitutional  power 
to  issue  bonds;  that  subsequently  the  City  of  Dubuque 
had  issued  bonds ;  but  that  afterwards  the  Supreme  Court 
of  Iowa  had,  in  a  very  elaborate  opinion,  overruled  its 
former  decisions.  The  Supreme  Court  of  the  United 
States  held  the  bonds  good.  The  opinion  of  the  majority, 
delivered  by  Swayne,  J.,  is  singularly  feeble  both  in  form 
and  substance,  while  the  dissenting  opinion  of  Miller,  J., 
is  masterly.  But  it  is  not  an  uncommon  phenomenon  for 
minority  opinions  to  be  far  superior  in  force  to  those 
of  the  majority,  and  yet  for  the  doctrine  of  the  majority 
to  be  right,  and  in  the  end  to  prevail. 

Mr.  Justice  Miller  said:  "I  understand  the  doctrine 
to  be  in  such  cases,  not  that  the  law  is  changed,  but  that 
it  was  always  the  same  as  expounded  by  the  later  deci- 

1  See  Holmes,  J.,  in  Kuhn  v.  Fairmount  Coal  Co.,  215  U.S.  349,  371. 
3  Ohio  Ins.  Co.  v.  Debolt,  16  How.  416,  432. 
31  Wall.  175  (1864;. 


258          THE  NATURE  AND  SOURCES  OF  THE  LAW 

sion,  and  that  the  former  decision  was  not,  and  never 
had  been,  the  law,  and  is  overruled  for  that  very  reason. 
The  decision  of  this  court  contravenes  this  principle,  and 
holds  that  the  decision  of  the  court  makes  the  law,  and 
in  fact,  that  the  same  Statute  or  Constitution  means  one 
thing  in  1853,  and  another  thing  in  1859."  l  That  is 
exactly  so.  The  majority  opinion  did  necessarily  mean 
that  the  courts  make  and  change  the  Law,  and  because 
the  majority  recognized  this,  though  dimly,  it  was  right 
and  has  prevailed.2 

In  Douglass  v.  County  of  Pike,3  in  1880,  the  language 
of  the  Supreme  Court  became  firmer. 

"The  true  rule  is  to  give  a  change  of  judicial  construc- 
tion in  respect  to  a  statute  the  same  effect  in  its  operation 
on  contracts  and  existing  contract  rights  that  would  be 
given  to  a  legislative  amendment;  that  is  to  say,  make  it 
prospective,  but  not  retroactive.  After  a  statute  has  been 
settled  by  judicial  construction,  the  construction  becomes, 
so  far  as  contract  rights  acquired  under  it  are  concerned, 
as  much  a  part  of  the  statute  as  the  text  itself,  and  a 
change  of  decisions  is  to  all  intents  and  purposes  the  same 
in  its  effect  on  contracts  as  an  amendment  of  the  law  by 
means  of  a  legislative  enactment.  .  .  .  The  new  decisions 
would  be  binding  in  respect  to  all  issues  of  bonds  after 
they  were  made;  but  we  cannot  give  them  a  retroactive 
effect  without  impairing  the  obligation  of  contracts  long 

'P.  211. 

*See  Havemeyer  v.  Iowa  County,  3  Wall.  294  ( 1886)  ;  Thompson  v. 
Lee,  Id.  327;  Mitchell  v.  Burlington,  4  Wall.  270  (1867);  Lee 
County  v.  Rogers,  1  Wall.  181  (1869) ;  City  v.  Lamaon,  9  Wall.  477 
(1870). 

9  101  U.S.  677. 


JUDICIAL  PRECEDENTS  IN  THE  UNITED  STATES    259 

before  entered  into.    This  we  feel  ourselves  prohibited  by 
the  Constitution  of  the  United  States  from  doing."  1 

If,  after  a  State  court  has  decided  that  certain  con- 
tracts are  valid,  a  contract  of  the  kind  is  made,  suit  is 
brought  on  it,  and  the  court  reverses  its  former  ruling 
and  holds  the  contract  invalid,  no  appeal  lies  to  the 
Supreme  Court  of  the  United  States.  This  seems,  at 
first  sight,  inconsistent  with  Gelpcke  v.  Dubuque,  but  such 
is  not,  in  fact,  the  case.  In  the  provision  of  the  Constitu- 
tion that  no  State  shall  pass  any  law  impairing  the  obli- 
gation of  contracts,  "law"  is  construed  to  mean  "statute," 
a  law  formally  passed  by  a  legislative  body,  while  the 
impairment  in  the  case  supposed  arises  from  a  change  in 
the  judge-made  law,  and  therefore  is  not  within  the  pro- 
tection of  the  Constitution.2 

1P.  687.  See  Thompson  v.  Perrine,  103  U.S.  806;  106  U.S.  589; 
Taylor  v.  Ypsilanti,  105  U.S.  60;  County  of  Rails  v.  Douglass,  105 
U.S.  728;  Green  County  v.  Conness,  109  U.S.  104;  Anderson  v.  Santa 
Anna,  116  U.S.  356.  And  now  in  Muhlker  v.  N.  Y.  &  Harlem  R.  R. 
Co.,  197  U.S.  544,  the  court  has  carried  this  doctrine  to  a  further  ex- 
treme. See  Sauer  v.  New  York,  206  U.S.  536,  and  articles  by  Mr. 
Larremore  in  22  Harvard  Law  Rev.  182,  and  Professor  Pope  in  24 
Harvard  Law  Rev.  6,  8-10,  23. 

3  The  best  statement  of  the  situation  created  by  Sivift  v.  Tyson 
and  Gelpoke  v.  Dubuque  will  be  found  in  an  article  by  William  H. 
Rand,  Jr.,  of  the  New  York  Bar,  8  Harvard  Law  Rev.  328.  See 
also  preceding  note. 


CHAPTER  XI 

OPINIONS   OF   EXPERTS 

Opinions          A  THIRD  source  of  Law,  and  one  of  great  importance, 

of  experts      .       ,          ,    .       .1  .    .  £  a          . .  .,_ 

as  sources    is  found  in  the  opinions  of  experts,     sometimes  these 

of  Law  ...  i         i       i      •  i      • 

opinions  have  been  taken  up  by  the  legislative  organ  of  a 
community  and  published  as  part  of  the  Statute  Law.  The 
most  familiar  and  striking  instance  of  this  was  when 
Justinian  compiled  the  Digest  from  the  treatises  of  the 
Jurists.1  Again,  the  opinion  of  a  new  and  unknown 
writer  is  sometimes  adopted  and  applied  by  a  court,  not 
because  the  author  possesses  any  authority,  but  because  his 
arguments  and  conclusions  appear  to  the  court  to  be  sound, 
just  as  the  arguments  and  conclusions  of  an  advocate 
in  a  particular  case  might  appear  to  be  sound. 

It  is  not  the  effect  of  opinions  on  the  Law  in  either  of 
these  two  modes  that  is  to  be  considered  here;  but,  in- 
termediate between  them,  stand  the  opinions  of  persons 
which  carry  a  weight,  because  those  persons  are  recognized 
experts.  To  use  the  common  phrase,  they  are  authorities. 
It  is  with  the  opinions  of  experts  as  authorities  that  we 
have  here  to  deal. 

In  the  physical  sciences,  authority  had  once  great 
weight,  but  at  the  present  day,  as  an  ultimate  principle, 
it  is  frankly  and  energetically  repudiated.  In  theology, 
the  extent  to  which  authority  should  be  admitted  as  a 

'See  p.  186,  ante. 
260 


OPINIONS  OF  EXPERTS  261 

ground  of  belief  has  been  a  matter  of  the  liveliest  con- 
troversy. But  whatever  may  be  its  value  in  theology  and 
kindred  sciences,  in  Jurisprudence,  at  any  rate,  where  our 
primary  objects  of  contemplation  are  the  rules  laid  down 
by  the  judges,  and  where  the  existence  of  those  rules,  and 
not  their  conformity  to  our  notions  of  a  divine  ideal,  is  the 
chief  topic  of  inquiry,  authority  is  unquestionably  a  matter 
with  which  we  have  much  to  do,  for  authority  is  an  im- 
portant source  of  the  rules  followed  by  the  courts, — that 
is,  of  the  Law. 

One  of  the  forms  of  authority,  that  which  it  bears 
when  it  takes  the  shape  of  Judicial  Precedent,  we  have 
already  considered.  In  the  present  chapter,  we  are  to 
deal  only  with  authority  which  does  not  take  that  shape. 
In  a  system  where  great  respect  is  paid  to  Judicial  Prece- 
dent, comparatively  slight  regard  is  likely  to  be  rendered 
to  opinions  not  coming  in  that  form;  this  we  see  in  the 
manner  in  which  the  Common  Law  subordinates  treatises 
to  decisions.  In  Germany,  on  the  other  hand,  where  the 
decisions  of  courts  do  not  have  a  binding  force,1  the  au- 
thority of  jurists  not  occupying  judicial  position  is  often 
very  great. 

It  must  be  observed  that  at  the  Common  Law  not  every  o&«er  <uota 
opinion  expressed  by  a  judge  forms  a  Judicial  Precedent 
In  order  that  an  opinion  may  have  the  weight  of  a  prece- 
dent, two  things  must  concur:  it  must  be,  in  the  first 
place,  an  opinion  given  by  a  judge,  and,  in  the  second 
place,  it  must  be  an  opinion  the  formation  of  which  is 
necessary  for  the  decision  of  a  particular  case;  in  other 
words,  it  must  not  be  obiter  dictum.  That  is,  over  against 

aPp.  205  et  seq.  ante. 


262          THE  NATURE  AND  SOURCES  OF  THE  LAW 

Judicial  Precedents  stand  not  only  the  opinions  of  non- 
judicial  persons,  but  the  obiter  dicta  of  judges. 

I  have  spoken  in  an  earlier  place  1  of  Savigny'g  theory 
that  the  opinion  of  jurists  is  the  expression  of  the  popu- 
lar consciousness,  and  have  shown  that  this  is  a  fiction  or, 
at  best,  an  empty  form  of  speech.  I  will  not  recur  to 
it  here.  I  shall  deal  simply  with  the  undoubted  fact  that, 
besides  Judicial  Precedents,  the  opinions  of  persons 
learned  in  the  Law  are  influential  on  its  formation. 

How  are  the  opinions  of  experts  made  known  to  the 
courts?  The  treatis.es  of  text  writers  have  been  spoken 
of  as  the  mode  of  communication.  But  it  must  be  borne 
in  mind  that  the  greater  part  of  most  text-books  at  the 
Common  Law,  and  the  whole  of  many  of  them,  are  not  de- 
voted to  the  statement  of  such  opinions;  they  do  not  con- 
tain, nor  profess  to  contain,  any  original  or  independent 
thinking  or  conclusions;  they  are  simply  collections  of 
statutes  and  precedents;  their  merit  or  demerit  lying 
solely  in  their  good  or  bad  arrangement. 

But  a  more  important  matter  is  that  the  opinions  of 
experts  are  often  communicated  to  the  courts  in  other 
ways  than  through  treatises.  Of  course,  in  primitive 
times,  such  communication  was  exclusively  oral,  and 
though,  in  the  course  of  years,  it  has  taken  more  and 
more  a  written,  or  rather  a  printed,  form,  yet  a  very  im- 
portant source  of  Law — and  perhaps  at  the  present  day  it 
is  quite  as  influential  as  it  ever  has  been — is  the  opinion 
of  experts,  not  printed,  and  indeed  not  formulated  in  any 
express  statement,  but  known  or  believed  by  the  courts 
to  be  their  general  opinion;  such  knowledge  or  belief  be- 
ing gained  through  some  of  the  means  by  which  knowledge 

1  See  pp.  89  et  seq.  ante. 


OPINIONS  OF  EXPERTS  263 

or  belief  of  general  opinion  is  acquired.  That  the  bar 
who  practise  before  a  judge  would  be  universally  or  gen- 
erally of  opinion  that  a  certain  decision  ought  not  to  be 
made,  although  not  conclusive  on  his  judgment,  ought  to 
have,  and,  what  is  more  to  our  present  purpose,  does  have, 
an  influence  on  him,  and  an  influence  of  a  distinctly  more 
stringent  character  than  the  knowledge  or  belief  that  the 
unlearned  laity  would  disapprove  of  the  decision.1 

To  say  what  makes  one  writer  an  authority  in  the  Law 
and  another  not,  is  as  hard  as  to  say  what  makes  one  man 
an  authority  in  medicine  or  in  "practical  politics,"  while 
the  opinion  of  another  man  has  no  weight  in  either.  Au- 
thority is  the  result  of  reputation,  and  the  causes  why 
one  writer  has  a  reputation  are,  if  not  infinite,  at  least 
indefinite.  Attempts  to  weigh  the  authority  of  jurists 
by  any  exact  balance,  or  to  bring  them  to  any  test,  con- 
ventional or  otherwise,  are  rare ;  something  of  the  kind  was 
attempted  in  the  later  Roman  Law. 

I  have  spoken  in  a  preceding  chapter 2  of  the  important  compar- 
place  that  the  jurisconsults  occupied  in  the  later  times  of  weight  of 

-r»         n  •  •  different 

the  Roman  Republic;  how  there  was  given  to  certain  01  jurists: 

*  °  in  the 

them  by  the  Emperors  the  jus  respondendi;  and  how  the 
responsa  of  these  favored  jurists  had  probably  the  weight 
of  Judicial  Precedents.  But  there  were  other  jurists, 
some  of  great  reputation,  who  never  possessed  the  jus  re- 
spondendi; the  most  famous  of  these  was  Gaius. 

In  the  later  Empire,  the  jus  respondendi  ceased  to  be 
given,  and  a  natural  consequence  was  that  the  writings 
of  all  jurists  came  to  be  considered  as  belonging  to  the 
same  class,  and  to  be  distinguished  only  by  the  relative 

*See  e.g.  Hall  v.  Corcoran,  107  Mass.  251,  253. 
'  Pp.  201  et  seq. 


264          THE  NATURE  AND  SOURCES  OF  THE  LAW 

reputation  of  their  authors.  And  the  writings  of  the 
jurists  were  now  practically  the  source  from  which  the 
Law  was  drawn;  the  Twelve  Tables,  even  the  Edict  of 
the  praetors,1  had  retired  into  the  background,  and  it  was 
only  through  the  commentaries  and  treatises  of  the  jurists 
that  they  were  brought  to  the  notice  of  the  tribunals. 
Authority  was  given  by  reputation.  But  how  was  repu- 
tation to  be  determined?  The  situation  was  very  con- 
fused. The  Emperors  intervened. 

In  A.D.  321,  the  Imperial  Government  of  Rome  de- 
creed that  the  notes  of  Ulpian  and  Paullus  on  Papinian 
should  not  be  cited,2  but  six  years  later  it  was  decreed, 
"Universa,  quce  scriptura  Paulli  continentur,  recepta 
auctoritate  firmanda  sunt  et  omni  veneratione  cele- 
branda."  3  A  hundred  years  later,  we  have  the  celebrated 
Law  of  Citations:  "Papiniani,  Paulli,  Gaii,  Ulpiani 
atque  Modestini  scripta  universa  firmamus  ita,  ut  Gaium 
quoB  Paullum,  Ulpianum  et  cunctos  comiietur  auctoritas, 
lectionesque  ex  omni  ejus  opere  recitentur.  Eorum  quoque 
scientiam,  quorum  tractatus  atque  sententias  prcedicti 
omnes  suis  operibus  miscuerunt  ratam  esse  censemus  ut 
Sccevolm,  Sabini,  Juliani  atque  Marcelli,  omniumque,  quos 
illi  celebrarunt,  si  tamen  eorum  libri,  propter  antiquitatis 
incertum,  codicum  collatione  firmentur.*  Ubi  autem  dir 
versce  sententice  proferuniur,  potior  numerus  vincat  aucto- 
rum  vel,  si  numerus  cequalis  sit,  ejus  partis  proecedat  aucto- 
ritas,  in  qua  excellentis  ingenii  vir  Papiniawus  emineat, 

^See  pp.  31,  199,  ante. 

•Theod.  Cod.  I,  4,  1. 

8  "All  the  contents  of  the  writings  of  Paullua  are  approved  by 
authority,  and  are  to  be  affirmed  and  treated  with  all  respect." 
Theod.  Cod.  I,  4,  2. 

4  See  Sohm,  Inst.  §  17. 


OPINIONS  OF  EXPERTS  265 

quif  ub  avngulos  vincit,  ita  cedit  duobus.  Notas  etiam 
PcuuMi  atque  Ulpiani  in  Papiniani  corpus  facias  (sicut 
dudum  statutum  est)  prcecipimus  infinnari.  Ubi  autem 
pares  eorum  sententice  recitantur,  quorum  par  censetur 
auctoritas,  quod  sequi  debeat  eligat  moderatio  judicantis. 
Paulli  quoque  Sententias  nuper  valere  prcecipimus."  1 

Justinian,  when  ordering  the  Digest  to  be  compiled,  did 
away  with  the  provisions  of  the  Law  of  Citations,  as  it 
was  called,  and  directed  the  commissioners,  "ea  quce  antea 
in  notis  JEmilii  Papiniani  ex  Ulpiano  et  Paulo  nee  non 
Marciano  adscripta  sunt,  quce  antea  nullam  vim,  optinebant 
propter  honorem  splendictissimi  Papiniani,  non  statim 
respuere."  2 

After  the  revival  of  learning,  special  authority  was  at- 
tributed to  favorite  doctors  in  some  countries.  Thus,  in 
Spain,  at  one  time,  "tribuitur  vis  legis,  non  solum,  jure 

1  "All  the  writings  of  Papinian,  Paullus,  Gaius,  Ulpian  and  Modes- 
tinus  we  confirm,  so  that  the  same  authority  shall  belong  to  Gaius 
as  to  Paullus,  Ulpian  and  all  the  rest,  and  passages  from  all  his 
works  may  be  cited.  Also  we  approve  the  doctrine  of  those  whose 
treatises  and  opinions  any  of  the  aforesaid  writers  have  inserted  in 
their  own  works,  such  as  Scaevola,  Sabinus,  Julian  and  Marcellus, 
and  all  those  whom  the  first-named  writers  have  quoted,  provided 
however  that  the  books  containing  their  writings,  on  account  of  the 
uncertainty  resulting  from  their  antiquity,  are  verified  by  a  com- 
parison of  manuscripts.  But  when  different  opinions  are  expressed, 
the  greater  number  of  writers  is  to  prevail,  or,  if  the  numbers  are 
equal,  the  authority  of  that  side  is  to  take  precedence,  on  which 
stands  Papinian,  that  man  of  surpassing  abilities,  who  outweighs 
any  single  opponent,  but  yields  to  two.  And  further  we  direct  that 
the  notes  of  Paullus  and  Ulpian  on  the  works  of  Papinian  (as  has 
been  formerly  decreed)  are  to  be  of  no  force.  But  where  an  equal 
number  of  opinions  are  cited  on  each  side,  of  those  whose  weight 
as  authorities  is  considered  equal,  he  who  gives  judgment  may 
choose  at  his  discretion  which  should  be  followed.  We  have  re- 
cently decreed  that  the  Opinions  of  Paullus  are  of  weight."  Theod. 
Cod.  I,  4,  3. 

'"The  notes  to  ^Emilius  Papinian  derived  from  Ulpian,  Paullus 
and  Marcian,  which  formerly  had  no  force,  on  account  of  the  repu- 
tation of  the  illustrious  Papinian,  you  are  not  invariably  to  reject." 
Preface  I  (De  conceptione  digestorum),  1.  6. 


266 


THE  NATURE  AND  SOURCES  OF  THE  LAW 


Compar- 
ative 
weight  of 
different 
jurists: 
In  the 
Common 
Law 


Ccesareo  et  canonico,  sed  et  doctorwm  interpretationibus ; 
in  Coesa/reo,  Bartolo  et  post  eum  Bcddo;  in  canonico, 
Johanni  Andrece  et  post  eum  Panormitano."  *  So  in  Por- 
tugal, "Lege  enim  Lusitana  judicibus  mandatum  est,  ut 
deficientibus  legibus  regni  et  jure  civili  Romanorum,  ad 
Accursii  glossas  et  Bartolum  recurratur."  2 

In  some  of  the  earlier  civilians  there  are  rules  for  mar- 
shalling authorities,  but  they  are  so  general  and  vague 
as  to  have  trifling  practical  value.3  Duck's  fifth-  rule  is 
this :  "Cum  doctorum  sententice  inter  se  pugnantes  reperi- 
untur,  eos  potissimum  sequendos  esse  existirnavit  clarissir 
mus  Gallice  Jurisconsultus,  Guido  Coquillus,  qui  dig- 
nitates  et  fortunas  contemserunt,  quales  fuerunt  Bartolus, 
Castrensis,  Speculator*  Masnerius,  Petrus  Jacobi,  Carolus 
Molinceus,  aliique,  qui  in  jure  investigando  affectibus  suis 
et  sordibus  non  indulserunt."  5 

In  the  Common  Law  no  rule  has  been  laid  down  as  to 
marshalling  authorities  according  to  their  weight.  Lord 
Eldon,  in  Johnes  v.  Johnes*  is  reported  to  have  said  that 

1  "The  force  of  law  is  accorded,  not  only  to  the  Imperial  and  canon 
law,  but  to  the  interpretations  of  the  learned;  on  the  Imperial  law, 
to  Bartolus  and  after  him  to  Baldus;  on  the  canon  law,  to  Johannes 
Andreas  and  after  him  to  Panormitanus."  A.  Duck,  De  Auth.  Jur. 
Civ.  II,  c.  6,  §  29. 

1  "For  by  Portuguese  law  the  judges  are  directed,  in  case  the  laws 
of  the  kingdom  and  the  Roman  civil  law  are  insufficient,  to  have  re- 
course to  the  commentaries  of  Accursius  and  to  Bartolus."  Id.  I, 
c.  8,  §  6. 

3  See  1  Menoch.  De  Prsesumpt.  II,  71;  A.  Duck,  I,  c.  8,  §  14. 

*I.e.  Durandus. 

'"When  the  opinions  of  the  learned  are  found  to  be  in  conflict 
with  each  other,  the  famous  French  jurisconsult,  Guido  Coquillus, 
considers  that  those  should  preferably  be  followed  who  have  disre- 
garded honor  and  wealth,  such  as  were  Bartolus,  Castrensis,  the 
Speculator,  Masnerius,  Petrus  Jacobi,  Carolus  Molinseus,  and  others, 
who  in  the  study  of  the  law  did  not  allow  themselves  to  be  influ- 
enced by  their  personal  feelings  or  desire  for  filthy  lucre." 

8  3  Dow,  1,  15. 


OPINIONS  OF  EXPERTS  267 

"One  who  had  held  no  judicial  situation  could  not  regu- 
larly be  mentioned  as  an  authority";  but  there  is  prob- 
ably no  marked  distinction  between  a  treatise  written  by 
one  who  is  or  has  been  a  judge  and  one  written  by  a  man 
who  has  never  held  judicial  office. 

There  is  a  short  colloquy  reported  in  Ions  Case.1  "Met- 
calfe  [referring  to  Welsby's  edition  of  Archibold's  Crim- 
inal Pleading].  Mr.  Welsby,  who  may  be  cited  as 
authority,  comments  on  the  words  'utter  or  publish/ 

"Pollock,  C.  B.    Not  yet  an  authority. 

"Metccdfe.  It  is  no  doubt  a  rule  that  a  writer  on  law 
is  not  to  be  considered  an  authority  in  his  lifetime.  The 
only  exception  to  the  rule,  perhaps,  is  the  case  of  Justice 
Story. 

"Coleridge,  J.    Story  is  dead." 

The  reporter  appends  the  following  note:  "This  rule 
seems  'more  honored  in  the  breach  than  in  the  observance/ 
The  annotations  of  Mr.  Greaves,  Russell  on  Crimes,  and 
the  learned  work  of  Mr.  Pitt  Taylor  on  Evidence,  are 
constantly  cited  in  Crown  cases;  and  the  writings  of 
Chitty,  Starkie,  and  also  of  Story,  were  referred  to  in  the 
same  way  in  their  lifetime."  2 

It  is  almost  a  matter  of  necessity  that  authority  in  some  Necessity 

.  .of  some 

form,  either  in  the  shape  of  Judicial  Precedents  or  in  authority 

'  .   .  ,  besides 

the  shape  of  the  writings  of  jurists,  should  be  one  of  statutes 
the  sources  of  the  Law.     Legislation  covers  but  a  small 
part  of  the  field,  and,  as  we  have  seen,  legislation  has 

1 2  Den.  C.  C.  475,  488. 

*  It  has  been  said  that  some  of  the  old  text-books  constitute  a  dis- 
tinct class  of  "books  of  authority."  Pollock,  Jurisprudence,  3d  ed., 
246.  If  a  technical  distinction  of  this  sort  was  ever  recognized  by 
the  courts,  it  is  probably  of  very  little  practical  importance  at  the 
present  day. 


268          THE  NATURE  AND  SOURCES  OF  THE  LAW 

to  be  interpreted  by  the  courts  before  it  becomes  a  part  of 
the  Law.  If  judges  were  always  going  back  to  establish 
fundamental  propositions  by  independent  processes  of 
reasoning,  the  work  of  the  world  would  never  get  itself 
done.  Take  a  simple  case  of  a  sale  of  goods — how  many 
questions  may  arise.  What  is  a  contract  ?  How  far  can 
an  intention  contrary  to  the  words  of  the  parties  be  shown  ? 
Is  a  delivery  necessary  to  pass  title?  Was  there  in  the 
eye  of  the  Law  a  delivery  ?  When  is  one  dispensed  from 
keeping  his  contract  ?  What  authority  has  an  agent  ?  If 
courts  had  to  examine  all  these  questions  de  novo  in  each 
case,  and  not  take  them  as  established  by  authority,  an 
army  of  judges  would  not  suffice  to  keep  society  moving. 
Even  when  a  judge  is  not  following  a  judicial  prece- 
dent or  the  opinion  of  any  jurist,  he  is  constantly  acting 
on  authority,  on  his  own  authority,  so  to  speak.  He  re- 
members having  arrived  at  certain  results;  he  does  not 
recall  the  reasoning  by  which  he  reached  them,  but  never- 
theless he  acts  upon  them  with  confidence.  "We  refer 
to  a  foregone  process  of  inquiry,  as  a  ground  of  present 
belief,  in  the  faith  that  it  was  adequately  performed, 
but  without  feeling  the  force  of  the  reasons  by  which  our 
mind  was  originally  satisfied."  * 
comparison  The  most  striking  difference  between  the  Civil  and  the 

of  the  Civil     „  TV       •  \LT-  i   j.-  v.-  i_ 

and  the        Common  Law  lies  in  the  greater  relative  importance  which, 
Law  in  the  former  system,  is  attributed  to  the  opinions  of  the 

jurists  as  compared  with  prior  decisions  of  the  courts.  In 
this,  as  in  other  matters,  it  is  much  to  be  regretted  that 
the  discussion  of  the  comparative  merits  of  the  two  sys- 
tems has  been  carried  on  so  largely  upon  a  priori  grounds. 

*Sir  G.  C.  Lewis,  Influence  of  Authority  in  Matters  of  Opinion, 
c.  2,  §  4. 


OPINIONS  OF  EXPERTS  269 

It  is  said  that  in  such  a  matter  the  Common  Law  must 
have  the  advantage,  and  on  such  another  the  rules  of  the 
Civil  Law  must  be  better ;  but  whether  they  actually  work 
better,  is  a  matter  of  which  little  has  been  said,  and  in  the 
ignorance  which  the  lawyers  of  either  system  have  of  the 
practical  working  of  the  other,  little  can  be  said.  One 
of  the  greatest  services  that  could  be  rendered  to  the  ad- 
vancement of  the  Law  would  be  for  some  intelligent 
and  well-educated  man  to  carry  on  real  professional 
work,  first  under  the  Civil  and  then  under  the  Common 
Law,  or  vice  versa,  and  to  tell  the  legal  world  the  results  of 
his  experience. 

There  are  three  classes  in  a  community  who  take  part 
in  the  development  and  application  of  the  Law, — the 
judges,  the  practising  lawyers  and  the  jurists.  The  acci- 
dental division  of  the  second  class  in  England  into 
barristers  and  attorneys  is,  for  our  present  purpose,  un- 
important. In  most  of  the  countries  where  the  Civil  Law 
prevails,  the  three  classes  are  distinct,  and  distinct  from 
the  beginning.  In  Germany  or  France,  a  man  intending 
to  devote  himself  to  the  Law  begins  his  career  either  in 
the  lower  orders  of  the  magistracy,  or  in  the  ranks  of 
the  advocates  and  notaries,  or  as  a  teacher  and  writer 
on  the  Law;  from  one  of  these  occupations  he  seldom 
passes  to  either  of  the  others;  and  it  is  the  latter  class, 
that  of  the  teachers  and  writers,  who  are  the  jurists  and 
exercise  the  greatest  influence  on  the  development  of  the 
Law. 

This  must  not  be  pushed  too  far.  Among  the  Romans, 
the  chief  factor  in  the  early  development  of  the  Law  is 
commonly,  and  probably  justly,  considered  to  have  been 
that  of  a  succession  of  judges,  the  prsetors,  publishing  the 


270          THE  NATURE  AND  SOURCES  OF  THE  LAW 

Edict  and  fashioning  Praetorian  Law; 1  and  the  great 
work  of  introducing  the  Roman  Law  into  Germany  was, 
as  I  have  said,  performed  by  the  doctor's  who  were  placed 
in  judicial  positions.2 

And  at  the  present  day,  notwithstanding  the  tenacity 
with  which  most  of  the  German  writers  still  continue  to 
deny  authority  to  Judicial  Precedents,  it  is  plain,  from 
the  increasing  number  of  reports  of  decisions  published 
upon  the  Continent,  and  the  frequency  with  which  they 
are  cited,  that  the  difference  between  the  Common  and 
Civil  Law,  though  still  existing,  is  less  accentuated  than 
it  was  some  years  ago.3  With  every  allowance,  however, 
a  chief  element  in  the  development  of  the  modern  Civil 
Law  has  been  the  writings  of  jurists  who  have  had  no 
experience  either  on  the  Bench  or  at  the  Bar. 

Under  the  Common  Law  in  England  and  America, 
we  have  a  very  different  state  of  things.  There  is  not 
that  line  of  demarcation,  if  not  impassable,  at  least  rarely 
passed,  which  in  France  and  Germany  separates  the  judge's 
career  from  the  advocate's.  The  English  and  American 
judges  have  not  been  all  their  lives  simply  public  officials 
to  decide  legal  questions  which  are  presented  to  them; 
they  have  had  to  deal  with  affairs  in  practice  at  the  bar. 
Since  the  great  seal  was  taken  from  Archbishop  Williams 
in  1625,  no  one  other  than  a  practising  barrister  has  been 
called  to  high  judicial  position  in  England  in  the  Courts 
of  Common  Law  or  Equity,  except  Lord  Shaftesbury, 
who  was  Chancellor  in  1672-1673  for  less  than  a  year. 
Since  that  time,  no  one  in  England,  and  since  the  inde- 

*P.  199,  ante. 
aP.  206,  ante. 
•P.  210,  ante. 


OPINIONS  OF  EXPERTS  271 

pendence  of  the  United  States,  no  one  with  us,  has  held  a 
seat  in  any  superior  court  of  Common  Law  or  Equity, 
the  judgments  of  which  would  have  any  weight  as  prece- 
dents, without  having  practised  at  the  bar  the  profession 
of  the  Law. 

There  was  one  exception  in  England  and  one  in  the 
United  States.  The  peculiar  constitution  of  the  House 
of  Lords,  by  which  persons  not  learned  in  the  Law  can 
vote  on  judicial  questions,  has  continued  in  existence  to 
the  present  day,  but  the  last  occasion  on  which  such 
persons  have  attempted  to  vote  was  in  1883.1  The  like 
power  in  the  Senate  of  the  State  of  New  York  came  to 
an  end  in  1846.2  In  a  few  of  the  States  high  judicial 
powers  survived  in  the  Governor  for  some  years,  even 
after  independence.  Thus,  the  Governor  of  New  Jersey, 
besides  being  Captain  General,  was  also  Chancellor  and 
Ordinary,  or  principal  Judge  of  Probate.3 

But,  further,  in  England  and  America,  not  only  is 
there  no  line  between  the  careers  of  judges  and  advocates, 
but  there  is  no  line  between  the  judges  and  advocates 
and  the  jurists.  Indeed,  a  large  proportion  of  those  text 
writers  who  could  properly  be  cited  as  authority  have 
either  filled  high  judicial  position,  or  have  been  actively 
engaged  in  some  branch  of  practice.  Omitting  the  names 
of  living  writers,  we  have,  in  England,  Bracton,  Little- 
ton, Coke,  Hale,  Doderidge,  Gilbert,  Foster,  Blackstone, 
Fearne,  Hargrave,  Butler,  Preston,  Wigram,  Abbott,  Sug- 

1 17  Law  Quart.  Rev.  357,  369-370. 

*See  14  Columbia  Law  Rev.  1,  2.  As  to  the  exercise  of  judicial 
powers  by  the  Legislature  of  Rhode  Island,  see  14  Yale  Law  Jour. 
148. 

8Clevenger  and  Keasbey,  Courts  of  New  Jersey,  118  et  seq.;  ap- 
pendix, 4  C.  E.  Green  Ch.  580 ;  Coursen's  Will,  3  Green  Ch.  408,  413. 


272          THE  NATURE  AND  SOURCES  OF  THE  LAW 

den,  Stephen,  Byles,  Williams,  Blackburn,  Benjamin;  and 
in  the  United  States,  Kent,  Story,  Redfield,  Washburn, 
Rawle. 

The  Law  of  a  country  at  any  time  is  made  up  of  the 
rules  that  its  courts  are  then  applying  in  the  decision 
of  cases.  In  countries  where  the  Common  Law  prevails 
the  courts  draw  those  rules  mainly,  so  far  as  they  are 
not  derived  from  statutes,  from  the  former  decisions  of 
judges.  In  countries  which  have  adopted  the  Civil  Law 
they  draw  those  rules  mainly  from  the  treatises  of  writers, 
without  regard  to  prior  decisions.  What  difference  in 
results  is  likely  to  arise  from  this  difference  in  the  sources  ? 

One  thing  strikes  at  first  sight.  The  method  of  the 
Civil  Law  tribunal  is  more  deductive  than  that  of  the 
Common  Law  court.  The  jurist  works  undoubtedly  to  a 
great  extent  by  induction.  His  general  doctrines  are  not 
perceived  by  him  intuitively.  He  considers  cases  of  con- 
duct, real  or  imaginary,  and  from  them  he  extracts  gen- 
eral rules,  expressed,  if  he  have  the  genius  of  the  great 
Roman  lawyers,  in  elegant  propositions  and  definitions, 
and  illustrated  by  apposite  examples.  But  the  result  of 
his  work,  as  it  presents  itself  to  the  judge,  who  turns  to 
him  for  instruction,  is  not  a  collection  of  concrete  cases, 
but  a  series  of  general  rules,  and  it  is  the  natural  ten- 
dency of  the  judge's  mind  to  bring  the  case  before  him 
under  one  of  those  general  rules,  or,  in  other  words,  to 
fit  it  somehow  into  the  system  with  which  the  writer  has 
furnished  him. 

But  the  judge  who  is  working  with  precedents  in  the 
form  of  earlier  concrete  cases  is  slow  to  accept  any  general 
doctrine  or  to  lay  down  any  rule  as  final.  Each  new 
state  of  facts  brings  a  new  element  into  the  Law,  and 


OPINIONS  OF  EXPERTS  273 

the  old  results  are  to  be  reconsidered  in  view  of  this  new 
element.  The  principles  extracted  from  the  old  cases  are 
always  being  reexamined  in  the  light  of  new  facts. 

Each  system  has  its  merits  and  its  defects.  The  method 
of  the  Common  Law  is  the  more  scientific,  and  it  would 
be  entirely  so,  were  it  not  that  it  gives  an  artificial  weight 
to  prior  decisions  by  assuming  them  to  be  correct.  The 
Common  Law  judge  is  like  an  experimenter  in  chemistry, 
who  is  always  testing  his  theory  by  new  and  varied 
experiments,  but  who  is  not  ready  enough  to  admit  that 
the  record  of  former  experiments  may  be  wrong;  while 
the  Civil  Law  judge,  on  the  other  hand,  is  like  a  chemist 
who,  having  arrived  at  a  theory,  insists  upon  applying  it 
as  the  true  rule  of  nature.  And  the  civilian  has  not  the 
opportunity  of  discovering  his  mistakes  which  is  given 
the  chemist.  If  the  latter's  theory  requires  that  the  union 
of  two  bodies  should  produce  a  blue  solid,  and,  instead 
of  that,  it  yields  a  yellow  gas,  the  most  obstinate  of  doc- 
trinaires is  driven  to  revise  his  theory ;  but  if  in  the  Law 
a  theory  requires  the  decision  that  a  certain  transaction 
is  right,  it  will  be  often  difficult  to  demonstrate  that  the 
theory  is  wrong.  The  correctness  or  incorrectness  of  legal 
theories  cannot  easily  be  brought  to  the  test  of  tangible 
proof.  If  one  asserts  a  legal  doctrine  to  be  sound,  he 
cannot  be  refuted  by  the  assertion  of  some  one  else  that 
it  is  not. 

Of  course,  if  the  judge,  be  he  of  the  Common  or  of  the 
Civil  Law,  is  a  sensible  man,  he  will  not  push  his  way  of 
looking  at  things  to  an  extreme.  The  Common  Law 
court  will  admit  that  a  former  decision  may  have  been 
wrong;  and  the  Civil  Law  court  will  admit  that  a  legal 
writer,  though  one  of  the  admired  masters,  may  have  laid 


274          THE  NATURE  AND  SOURCES  OF  THE  LAW 

down  a  general  principle  too  broadly  or  too  narrowly; 
but  notwithstanding  this,  there  will  be  a  tendency  the 
one  way  and  the  other,  and  this  tendency  will  make  itself 
felt. 

The  Common  Law  system  has  one  incidental  advan- 
tage. It  establishes  a  test  which  is  easily  applied  to  de- 
termine the  comparative  weight  to  be  attached  to  opinions. 
It  avoids  that  endless  clash  of  opinions  which  prevails  in 
those  countries  where  there  is  no  fixed  precedency  in  the 
weight  of  authority,  and  where  one  doctor's  opinion  is  as 
good  as  another  doctor's  opinion. 

On  the  other  hand,  in  a  country  like  Germany,  where 
each  writer  can  emit  his  opinion,  not  only  of  what  the 
Law  ought  to  be,  but  of  what  the  Law  is,  notwithstanding 
the  judgment  of  Ober  or  Oberst  tribunal  to  the  contrary, 
and  free  from  any  conventional  discredit,  there  is,  pos- 
sibly, a  better  chance  in  the  end  for  a  result  to  be  reached 
which  will  be  wisest  as  a  final  conclusion. 

And  yet,  to  a  Common  Law  lawyer,  considering  that 
the  end  of  the  Law  is  to  work  out  the  happiness  of  the 
community,  and  not  to  establish  a  system  however  ele- 
gant and  logical,  it  is  hard  not  to  prefer  the  method  of 
his  own  jurisprudence.  In  both  systems  the  legislature 
sits  supreme,  to  knock  to  pieces,  at  its  will  or  whim,  with 
equal  hand,  the  precedents  and  theories  of  judges  and 
jurists  alike.  It  can  correct  any  errors  of  judgment  into 
which  the  courts  may  fall,  and  in  that  large  class  of  cases 
where  there  is  no  difficulty  worthy  of  such  a  deus  ex 
machina,  the  measure  of  good  order  and  certainty  which 
is  brought  about  by  the  Common  Law  system  of  precedent 
seems  preferable  to  the  wild  waste  of  contending  doctors.1 
1  But  see  Maine,  Village  Communities  (3d  ed.),  48. 


OPINIONS  OF  EXPERTS  275 

The  inductive  method  of  the  Common  Law  makes  the 
system  more  "elastic";  the  readiness  to  adopt  a  new  de- 
cision as  soon  as  made  into  the  family  of  precedents,  the 
fact  that  there  is  no  rule  in  formal  shape  to  which  the 
decision  of  a  court  must  conform,  makes  it  more  easy 
to  adapt  the  Law  to  the  changing  circumstances  of  real 
life;  at  the  same  time,  from  its  being  always  ready  to 
change  the  form  of  its  general  principles,  it  is  inexact 
in  its  terminology.1 

The  Civil  Law,  on  the  other  hand,  is  simpler,  easier 
to  acquire,  easier  to  apply  in  ordinary  cases,  and  it  has 
a  more  exact  nomenclature.  The  uniformity  in  style 
and  expression  of  the  great  Antonine  jurists  is  very  re- 
markable and  could  exist  only  where  there  was  a  per- 
fectly defined  and  universally  recognized  vocabulary.  The 
fixity  of  statement  and  definition  in  the  Roman  Law  has 
not,  however,  been  an  unmixed  good.  It  established  a 
strong,  harmonious  system,  which  was  a  wonderfully 
good  one,  because  of  the  ability  of  the  men  who  framed 
it;  but,  after  all,  they  were  men  of  the  second  century, 
not  of  the  twentieth,  and  their  system,  while  in  many 
respects  an  admirable  framework  for  modern  law,  has  yet 
served  to  cramp  it. 

Sir  Henry  Maine  attributes  the  "wealth  of  principles" 
in  the  Roman  Law  to  the  uncontrolled  multiplication  of 
imaginary  cases,  because  all  combinations  of  fact  were  on 
the  same  footing,  without  regard  to  their  truth.2  If  this 
be  correct,  yet  I  doubt  much  whether  it  has  operated  to 
the  advantage  of  the  civilians.  In  the  Common  Law 

1  For  a  comparison  of  the  practical  advantages  of  the  two  sys- 
tems, see  address  of  Professor  Pound,  37  Rep.  Araer.  Bar.  Assn.,  975. 
'Ancient  Law    (Pollock's  ed.),  p.  41. 


276          THE  NATURE  AND  SOURCES  OF  THE  LAW 

courts  the  arguments  of  counsel  have  always  abounded  in 
imaginary  instances,  and  the  judges,  in  their  opinions, 
constantly  suggest  them.  The  argument  from  analogy 
which  fosters  the  use  of  imaginary  cases  flourishes  no- 
where more  than  in  the  Common  Law. 

The  true  distinction  is  not,  I  suspect,  that  the  Com- 
mon Law  judge  neglects  imaginary  cases,  but  that  the 
Civil  Law  jurist  is  in  danger  of  neglecting  real  cases.  It 
is  comparatively  easy  to  frame  a  rule  when  you  can  state 
your  own  examples.  Putting  simple  extreme  cases,  it  is 
not  difficult  to  draw  a  line  between  them,  but  when  you 
come  to  the  cases  which  real  life  presents,  with  their 
complications  and  limitations,  the  theorist  is  apt  to  divert 
his  eyes.  I  venture  to  quote  some  words  that  I  wrote 
many  years  ago :  "There  is  something  which  gives  a 
judge  a  great  advantage  over  a  text  writer,  an  advan- 
tage of  which  it  may  be  said  that  the  more  a  man  watches 
the  processes  of  his  own  mind,  or  those  of  others,  the  more 
weight  he  is  disposed  to  lay  on  it,  I  mean  the  circum- 
stances under  which  questions  are  presented  to  a  judge  for 
decision.  .  .  .  While  the  faculty  of  large  generalization 
is  perhaps  the  noblest  of  human  reason,  the  power  of 
sound  generalization  is  perhaps  the  rarest.  To  keep 
close  to  facts  in  laying  down  principles,  to  resist  the 
constant  (often  unconscious)  temptation  to  overlook  the 
limitations  and  qualifications  of  a  doctrine,  which  would 
render  its  exact  statement  a  most  difficult  and  laborious 
task,  but  the  absence  of  which  makes  the  statement  often 
false,  or  at  best  a  useless  platitude,  is  a  quality  given  to 
few  who  deal  with  moral  and  legal  subjects.  I  do  not 
mean  that  judges  are  free  from  this  common  weakness 
of  humanity, — far  from  it, — but  the  facts  in  the  case  are 


OPINIONS  OF  EXPERTS  277 

a  constant  aid  and  warning.  The  judge  has  his  facts 
given  to  him.  The  text  writer  makes  his  own  typical 
cases,  and  the  temptation  to  make  them  such  as  to  render 
easy  the  deduction  of  general  doctrines  is  well-nigh  irre- 
sistible." x 

And  here  the  admission  of  Bentham,  the  ablest,  as  he 
was  the  bitterest,  of  the  opponents  of  judge-made  law, 
is  very  noteworthy:  "Traverse  the  whole  Continent  of 
Europe, — ransack  all  the  libraries  belonging  to  the  juris- 
prudential  systems  of  the  several  political  states, — add 
the  contents  all  together, — you  would  not  be  able  to  com- 
pose a  collection  of  cases  equal  in  variety,  in  amplitude, 
in  clearness  of  statement — in  a  word,  all  points  taken 
together,  in  instructiveness — to  that  which  may  be  seen 
to  be  afforded  by  the  collection  of  English  Keports  of 
adjudged  cases."  2 

And  there  is  unquestionably  one  evil  caused  by  the 
habit  of  considering  imaginary  cases  rather  than  real  ones, 
— a  tendency  to  develop  distinctions  purely  theoretical 
and  to  complicate  the  Law  with  principles  and  deductions 
which  have  no  place  in  the  conduct  of  life, — and  this 
tendency  certainly  shows  itself  in  the  Civil  as  compared 
with  the  Common  Law.  Think,  for  instance,  of  the  dis- 
cussions and  doctrines  on  necessary  and  impossible  condi- 
tions,— on  legacies  if  Titius  goes  to  the  moon,  if  Titius 
does  not  go  to  the  moon,  if  Titius  never  dies,  etc.3  So 

*22  Am.  Law  Rev.  756,  758. 

»4  Benth.  Works,  461. 

•See  Inst.  Ill,  19,  11;  D.  XXVIII,  3,  16;  Swinburne  on  Wills,  pt. 
4,  §  6,  pi.  3,  12.  Compare  the  question  whether  the  will  of  Lazarus 
was  valid  after  his  resurrection,  quoted  in  27  Law  Quart.  Rev.  392. 
Another  defect  of  the  civilian  method  of  relying  on  treatises  is  the 
small  amount  of  information  given  in  them  as  to  the  legal  trans- 
actions which  actually  take  place.  "It  is  possible  to  dig  through  a 


278 


THE  NATURE  AND  SOURCES  OF  THE  LAW 


again,  the  subject  of  gratuitous  loans  has,  as  Judge  Story 
says,  "furnished  very  little  occasion  for  the  interposition 
of  judicial  tribunals,"  but  the  civilians  have  debated  on 
it  at  great  length,  discussing  whether,  if  Caius's  house 
be  on  fire,  it  is  lawful  for  him  to  save  an  urn  of  his  own 
in  preference  to  a  vase  which  he  has  borrowed  from  Bal- 
bus,  etc.,  etc.1 

I  have  spoken  of  the  advantage  which  the  form  of  the 
Civil  Law  gives  it  over  the  Common  Law,  and  the  pre- 
cision and  exactness  of  its  fundamental  conceptions  are 
often  contrasted  with  the  vagueness  of  the  Common  Law. 
But  all  this  needs  careful  qualification.  There  is,  in 
truth,  no  lack  of  precision  in  the  theories  of  learned 
civilians,  but  the  theory  of  one  learned  civilian  will  be 
precisely  opposite  to  that  of  another.  There  will  often  be 
a  multitude  of  writers,  no  two  agreeing  with  each  other, 
and  without  any  common  arbiter. 

Take,  for  instance,  the  leading  topic  of  possession. 
Before  1803,  when  Savigny  first  published  his  treatise, 
not  including  the  glossators,  nor  the  other  commentators 
down  to  the  end  of  the  fifteenth  century,  and  excluding 
also  a  great  number  of  writings  to  which  Savigny  says 
it  would  be  paying  far  too  high  honor  to  say  of  each  sepa- 
rately that  it  was  good  for  nothing,  thirty-three  authors 
had  written  on  the  subject.  In  the  following  sixty-two 
years,  down  to  1865,  when  the  seventh  and  last  edition  of 
Savigny's  book  was  published,  one  hundred  and  twenty 

whole  library  of  works  on  testamentary  succession,  to  find  therein 
numbers  of  clever  and  sagacious  rules  of  construction  but  not  a 
word  to  show  what  sort  of  wills  are  commonly  drawn  at  the  present 
time."  Eugen  Ehrlich,  Freie  Rechtsfindung  (Freedom  of  Judicial 
Decision),  Ch.  II,  §  22  at  end.  Transl.  in  Science  of  Legal  Method, 
p.  79.  (Modern  Legal  Philosophy  Series.) 
1  Story,  Bailm.  §§  245-247,  285. 


OPINIONS  OF  EXPERTS  279 

more  books  and  articles  had  been  added  to  the  list ; 1  and 
before  the  beginning  of  this  century  there  had  been  pub- 
lished over  thirty  more  separate  treatises  on  the  subject, 
not  including  the  discussions  in  the  general  works  or  the 
articles  in  the  legal  periodicals.2  More  than  forty  years 
ago,  Ihering  was  able  to  enumerate  eight  different  theories 
on  the  reason  for  the  protection  of  possession,  to  which 
eight  theories  he  proceeded  to  add  a  ninth.3  Whether 
it  is  better  to  protect  possession  with  nine  inconsistent 
theories,  or  without  any  theory  at  all,  is  a  question  not  to 
be  answered  offhand  in  favor  of  the  civilian  position. 

On  another  matter,  I  may  perhaps  be  allowed  to  quote  Advan- 

T    *  _x-  i       T  •  T-  T  i_         •     ,.  ta^es  of 

my  own  words  irom  the  same  article  which  I  have  lust  judicial 

decisions 

cited :     "As  to  the  comparative  fair-mindedness  of  the  as  author- 

r  .  ities 

judge  and  the  jurist,  there  is  something  to  be  said  on  either 
side.  Cases  present  themselves  to  the  legal  writer  in  a 
more  impersonal  manner.  The  parties  are  mere  names  to 
him.  But,  on  the  other  hand,  the  useful  conventionalities 
of  a  judge's  position  and  of  the  judicial  style,  as  well  as 
the  rapid  succession  of  different  questions  which  pass  be- 
fore him,  indispose  him  from  identifying  himself  person- 
ally with  a  pet  theory,  and  brooding  over  it  until  it  becomes 
distorted  into  an  altogether  undue  importance,  a  tendency 
to  which  the  solitary  student  or  writer  is  in  danger  of 
yielding.  Compare  the  general  tone  of  our  courts  in 
dealing  with  the  opinions  of  other  tribunals,  and  that  of 
the  German  jurists  who,  as  has  been  said,  seem  to  write 
mainly  for  the  purpose  of  refuting  and  reviling  each 
other,  and  one  will  be  inclined  to  believe  the  atmosphere 

1  Savigny,  Das  Recht  des  Besitzes,  Einleitung  II. 

2  See  bibliography,  e.g.,  in  Cornil,  Possession  dans  le  droit  Romain. 
'Ihering,  Grund  des  Besitzesschutzes,  §§  1-5. 


280          THE  NATURE  AND  SOURCES  OF  THE  LAW 

of  a  court  room  quite  as  favorable  to  unbiassed  considera- 
tion of  legal  questions  as  that  of  the  study. 

"One  thing  more,  judges,  as  a  class,  have  brought  to 
their  tasks  higher  conscientiousness.  The  knowledge 
that  a  decision  will  have  direct  consequences,  often  of  the 
most  serious  character,  to  actual  human  beings  is  a  tre- 
mendous sanction  for  rendering  right  judgment.  It  is 
true  that  a  feeling  of  the  consequences  sometimes  unduly 
deflects  the  decision  of  a  court;  but  in  a  vastly  greater 
number  of  cases  it  furnishes  a  motive  for  just  judgment 
which  the  most  light-minded  man  must  feel.  There  is 
no  such  direct  and  impressive  presence  before  the  legal 
writer ;  the  careless  statement,  the  hasty  conclusion,  the 
unverified  authority,  are  apt  to  sit  too  lightly  on  the  con- 
sciences of  the  writers  of  text-books." 

If  hard  cases  make  bad  law,  bad  law  makes  hard  cases. 
The  temptation  of  professional  men,  judges  and  jurists 
alike,  is  to  subordinate  the  welfare  of  persons  subject  to 
a  system  of  Law  to  the  logical  coherency  of  the  system 
itself,  and  there  is  more  danger  of  yielding  to  this  tempta- 
tion when  the  question  is  whether  an  imaginary  Numerius 
Negidius  shall  be  condemned  in  a  sum  of  imaginary 
sesterces,  than  when  it  is  whether  a  real  John  Jones  shall 
be  mulcted  so  many  real  dollars, 
increasing  The  enormous  number  of  judicial  decisions,  and  the 

importance  .,..,.  ... 

of  the  rapidity  in  their  rate  of  increase,  has  been  so  great  as 
to  indicate  that  the  function  of  the  jurist  will  rise  more 
and  more  in  importance  in  the  Common  Law,  from  the 
mere  fact  that  the  mass  of  material  will  become  too  great 
for  any  one  to  cope  with  it  all,  and  that  it  can  be  dealt 
with  only  by  systematic  study  directed  to  particular  parts. 
At  the  end  of  the  eighteenth  century  the  total  number  of 


OPINIONS  OF  EXPERTS  281 

printed  volumes  of  reported  cases  in  England,  Ireland, 
the  English  colonies,  and  the  United  States  of  America 
was  two  hundred  and  sixty.  At  the  end  of  the  year  1865 
they  had  increased  more  than  twelve  fold  to  over  three 
thousand,  not  including  the  Indian  Reports,  and  at  the 
end  of  the  nineteenth  century  the  published  reports  of  de- 
cisions in  the  United  States  alone  were  contained  in  about 
six  thousand  volumes. 

The  work  of  the  jurist  is  therefore  likely  to  rise  in 
importance  during  the  coming  years,  and  a  correspond- 
ing improvement  in  the  quality  of  treatises  on  the  Law 
may  be  confidently  expected.  If  the  Common  Law  has 
been  wise  in  attaching  great  weight  to  precedents,  it  has 
certainly  not  held  out  sufficient  welcome,  I  do  not  say  to 
actual,  but  to  possible,  jurists. 

Notwithstanding  the  difference  in  the  comparative 
weight  attached  to  the  opinions  of  judges  and  of  jurists 
in  the  Common  and  in  the  Civil  Law,  it  is  a  matter  of 
prime  importance  to  observe  that  in  both  systems  alike 
the  development  of  the  Law  has  been  mainly  due,  neither 
to  the  legislatures  on  the  one  hand,  nor  to  the  people 
on  the  other,  but  to  learned  men,  whether  occupying  ju- 
dicial position  or  not.  This  is  well  brought  out  by  Pro- 
fessor Munroe  Smith  in  his  valuable  and  interesting 
article  on  Problems  of  Roman  Legal  History,  4  Columbia 
Law  Rev.  523. 


CHAPTER  XII 

CUSTOM 

custom  as       CUSTOM  is  another  of  the  sources  of  the  Law.     The 

a  source 

of  Law  courts  have  adopted  certain  rules,  not  because  any  stat- 
utes have  required  them  to  do  so,  not  because  there  were 
any  precedents  for  such  rules  in  the  reports  of  decided 
cases,  not  because  they  found  any  doctrine  calling  for  the 
laying  down  of  the  rules  in  the  writings  of  jurists,  not  be- 
cause the  rules  recommended  themselves  to  their  moral 
sense,  but  because  they  found  them  followed,  in  society 
at  large,  or  in  some  parts  of  it,  in  the  intercourse  of  the 
members  of  the  society  with  each  other.  Thus,  in  the 
Common  Law,  three  days'  delay  in  payment,  called  days 
of  grace,  are  allowed  on  bills  of  exchange.  The  judges 
found  this  custom  existing  among  merchants,  and  adopted 
it. 

Custom  has  often  been  declared  to  be  the  source  of  all 
Law,  except  what  rests  upon  statutes.  Indeed,  this  may 
be  said  to  be  the  commonest  form  of  expression.  Thus 
Blackstone:  "This  unwritten  or  common  law  is  properly 
distinguishable  into  three  kinds:  1.  General  customs; 
which  are  the  universal  rule  of  the  whole  kingdom,  and 
form  the  common  law,  in  its  stricter  and  more  usual  sig- 
nification. 2.  Particular  customs;  which  for  the  most 
part  affect  only  the  inhabitants  of  particular  districts. 
3.  Certain  particular  laws ;  which  by  custom  are  adapted 

282 


- 


CUSTOM  283 

and  used  by  some  particular  courts,  of  pretty  general  and 
extensive  jurisdiction."  He  then  refers  to  many  doctrines 
of  Law  and  says:  "All  these  doctrines  that  are  not  set 
down  in  any  written  statute  or  ordinance,  but  depend 
merely  upon  immemorial  usage,  that  is,  upon  common 
law,  for  their  support"  1 

And  now  I  must  return  to  Mr.  James  C.  Carter's  post-  Mr. 

Carter's 

humous  book.  I  have  before  spoken  of  it  in  connection 
with  the  question  whether  judges  make  Law.2  Mr.  Carter 
denies  that  judges  make  Law;  he  says  that  they  merely 
declare  or  discover  Law  already  existing.  I  have  tried 
to  maintain  the  contrary,  and  to  test  the  correctness  of 
Mr.  Carter's  theory.  But  Mr.  Carter  goes  further  and 
denies  that  custom  is  only  one  of  the  sources  of  non- 
statutory  Law.  He  says  it  is  the  non-statutory  Law  itself, 
that  it  is  the  whole  non-statutory  Law.  This  view  he 
presses  with  great  energy.  We  must  consider  whether  it 
is  correct. 

I  have  spoken  of  Mr.  Carter's  fight,  his  successful  fight, 
against  the  introduction  of  Mr.  Field's  Civil  Code  into 
New  York,  and  how  it  led  him  to  combat  Austin's  theory 
that  all  Law  is  the  command  of  the  Sovereign.  Austin 
recognized  that  judges  make  Law,  but  he  said  that  in 
making  it  they  are  obeying  the  command  of  the  Sover- 
eign, because  whatever  the  Sovereign  permits,  he  com- 
mands.8 

The  true  view,  as  I  submit,  is  that  the  Law  is  what  the 
judges  declare;  that  statutes,  precedents,  the  opinions  of 
learned  experts,  customs,  and  morality  are  the  sources  of 

»1  Bl.  Com.  67,  68. 

'Pp.  93  et  seq.;  233  et  seq.  ante, 

»P.  85,  ante. 


284          THE  NATURE  AND  SOURCES  OF  THE  LAW 

the  Law;  that  back  of  everything  lie  the  opinions  of  the 
ruling  spirits  of  the  community,  who  have  the  power 
to  close  any  of  these  sources ;  *  but  that  so  long  as  they  do 
not  interfere,  the  judges,  in  establishing  Law,  have  re- 
course to  these  sources.  Custom  is  one  of  them,  but  to 
make  it  not  only  one  source  but  the  sole  source,  the  Law 
itself,  requires  a  theory  which  is  as  little  to  be  trusted 
as  that  of  Austin. 

You  will  have  observed  a  difference  between  the  language 
used  by  Blackstone  and  Mr.  Carter,  and  there  is  a  differ- 
ence in  their  theories.  According  to  Blackstone,  ancient 
custom  is  a  source  of  the  Law,  but  on  this  Mr.  Carter 
says:  "Such  a  limitation  of  custom  in  the  making  of  law 
seems  to  me  to  be  without  foundation,  .  .  .  present  cus- 
tom, provided  it  is  established,  is  as  efficient  as  if  it  were 
centuries  old."  2  And  again  Mr.  Carter  points  out  the 
novelty  of  his  theory :  "Ancient  customs,"  he  says,  "they 
[legal  writers]  have  indeed  regarded  as  having  the  force 
of  law,  but  this  quality  they  impute,  not  to  the  custom, 
qua  custom,  but  to  its  antiquity,  whereas  the  conclusion 
at  which  I  arrive  erects  present  existing  custom  as  the 
standard  of  law."  3 

And  on  this  point  Mr.  Carter's  theory  seems  an  im- 
provement on  Blackstone's.  Law  may  rest  now  on  statutes 
or  precedents,  and  to  the  making  of  the  statutes  and  prece- 
dents ancient  customs  may  have  contributed,  but  so  far  as 
custom  is  a  source  of  the  Law  as  it  now  exists,  it  is  pres- 
ent custom. 

But  waiving  this  point,  let  us  consider  whether  cus- 

1  Pp.  123-124,  ante. 

2  Carter,  71. 
8  P.  121. 


CUSTOM  285 

torn,  and  custom  alone,  is  the  Law.  We  shall  all  agree 
that  Law  is  made  up  of  those  rules  to  govern  the  conduct 
of  men,  which  the  State  will  enforce,  whether  those  rules 
be  made  by  the  judges  or  by  custom  or  by  anything  else. 

Now  custom  is  not  opinion,  it  is  practice,  and  the  neglect  Custom 
to  clearly  grasp  this  fact  seems  to  me  to  lie  at  the  root  opinion 
of  Mr.  Carter's  theory.  Customary  opinion  is  an  incor- 
rect expression.  Custom  is  what  men  do,  not  what  they 
think.  Mr.  Carter  sometimes  recognizes  this  explicitly. 
Thus,  he  says : l  "The  simplest  definition  of  custom  is 
that  it  is  the  uniformity  of  conduct  of  all  persons  under 
like  circumstances.  .  .  .  Conduct  is  some  physical  move- 
ment of  the  body."  To  put  it  in  somewhat  different  words, 
the  opinion  of  a  community  as  to  what  a  man  ought  to  do 
is  not  based  on  custom,  unless  there  is  a  general  practice. 

"Custom  is  effectual  only  when  it  is  universal,  or  nearly 
so.  In  the  absence  of  unanimity  of  opinion,  custom  be- 
comes powerless,  or  rather  does  not  exist."  This  is  the 
language  of  Mr.  Carter.2  But  at  a  later  page  he  says: 
"The  characteristic  in  early  and  rude  societies — it  is  so 
to  a  much  less  extent  in  enlightened  society — is  that 
customs,  in  many  respects,  are  not  settled  and  are  in  con- 
flict." 3  Here  seems  at  once  a  contradiction.  If  customs 
are  not  settled,  and  are  in  conflict,  they  are  not  universal, 
and  are,  therefore,  not  customs.  How  does  Mr.  Carter 
escape  from  this  contradiction? 

If  I  understand  him,  and  I  think  I  do,  it  is  in  this 
way.  Custom,  he  says,  is  universal  conduct.  But  a  ques- 
tion now  arises  which,  in  its  present  form,  has  never  come 

*Pp.  122,  123. 
•P.  38. 
•P.  66. 


286          THE  NATURE  AND  SOURCES  OF  THE  LAW 

up  before.  There  is  no  actual  practice,  for  the  question, 
in  its  present  form,  is  new,  but  there  are  principles  of 
morality,  chief  among  which  are  these, — that  a  man  should 
get  from  another  what  he  has  a  right  to  expect,  and  that 
conduct  should  be  judged  by  its  consequences, — and  that 
these  principles  of  morality  are  put  in  general  practice 
in  the  community,  though  not  in  the  particular  form 
that  has  arisen;  that  it  is  the  custom  to  act  upon  these 
principles,  and  that  therefore  a  judge,  deciding  in  accord- 
ance with  these  principles,  is  really  basing  his  decision  on 
custom. 

He  illustrates  this  by  a  case :  A  man  who  has  insured 
his  ship  did  not  disclose  to  the  insurer  a  fact  materially 
affecting  the  risk;  the  fact,  however,  was  notorious.  Mr. 
Carter  supposes  a  suit  by  the  owner  of  the  ship  to  be  de- 
cided against  the  underwriter.  This  is  what  he  says: 
"Was  this  case  decided  by  custom?  Some  would  say  it 
was  not,  because,  avowedly,  there  was  no  precedent,  which 
is  authenticated  custom,  nor  any  evidence  of  actual  cus- 
tom not  to  make  disclosure  of  notorious  information,  and 
they  would  declare  that  it  was  a  clear  case  where  the 
judges  had  made  the  law  out  of  their  own  heads,  upon  a 
simple  consideration  of  whether  the  failure  to  disclose 
was  right  or  wrong.  That  the  decision  was  based  upon  the 
consideration  whether  that  action  was  right  or  wrong  is, 
in  a  sense,  true ;  but  whose  notion  of  right  and  wrong  was 
it  ?  It  did  not  come  from  on  High.  It  was  not  sought  for 
in  the  Scriptures,  or  in  any  book  on  ethics.  The  judges 
in  considering  whether  the  act  was  right  or  wrong  ap- 
plied to  it  the  method  universally  adopted  by  all  men; 
they  judged  it  by  its  consequences;  they  considered  that 
the  underwriter,  in  all  probability,  and  therefore  pro- 


CUSTOM  287 

sumably,  knew  of  the  special  peril,  unless  he  was  utterly 
negligent  of  his  business,  which  could  not  be  supposed; 
that  therefore  he  had  lost  nothing  by  the  act,  nor  in  any 
manner  changed  his  position.  If  we  went  no  further  it 
would  be  manifest  that  custom  decided  the  case,  for  to 
determine  whether  it  was  right  or  wrong  by  the  customary 
modes  of  determining  right  and  wrong  is  to  determine  it 
according  to  custom.  The  court,  indeed,  declared  that  its 
decision  was  made  upon  principle;  but  what  is  meant  by 
this  ?  What  is  the  import  of  this  word  'principle'  ?  It 
has  various  meanings,  but  as  here  employed  it  denotes  a 
proposition  very  widely  true,  and  the  truth  of  which  is 
universally  admitted.  The  court  in  this  case  judged  of 
the  character  of  the  act  of  concealment  as  we  all,  from 
the  very  constitution  of  our  nature,  judge  of  all  conduct, 
by  its  consequences.  It  found  that  the  underwriter  had 
suffered  no  harm  in  consequence  of  the  concealment,  be- 
cause he  would  have  taken  the  risk,  even  if  the  knowledge 
had  been  disclosed,  and  that  it  was  a  principle  of  law  that 
a  man  could  not  fairly  complain  of  the  act  of  another 
unless  he  had  suffered  injury  from  it;  but  this  was  a 
principle  of  law  only  because  it  accorded  with  the  uni- 
versal custom  of  men."  * 

I  accept  the  question  of  Mr.  Carter's:     "Whose  notion  Morality 
of  right  and  wrong  was  it  ?"  as  bringing  matters  to  a  test. 


We  all  agree  that  many  cases  should  be  decided  by  the 
courts  on  notions  of  right  and  wrong,  and  of  course  every 
one  will  agree  that  a  judge  is  likely  to  share  the  notions 
of  right  and  wrong  prevalent  in  the  community  in  which 
he  lives;  but  suppose  in  a  case  where  there  is  nothing  to 
guide  him  but  notions  of  right  and  wrong,  that  his  notions 

'P.  72. 


288          THE  NATURE  AND  SOURCES  OF  THE  LAW 

of  right  and  wrong  differ  from  those  of  the  community, — 
which  ought  he  to  follow — his  own  notions,  or  the  notions 
of  the  community  ?  Mr.  Carter's  theory  requires  him  to 
say  that  the  judge  must  follow  the  notions  of  the  com- 
munity. I  believe  that  he  should  follow  his  own  notions. 

To  adopt  Mr.  Carter's  theory,  and  to  say  that  the  Law 
in  such  cases  is  based  on  custom,  seems  to  me  to  overlook 
the  fact  that  custom  is  conduct,  not  opinions  or  notions, 
and  that  Mr.  Carter's  view  is  fully  as  objectionable  as 
Austin's  that  Law  is  the  command  of  the  Sovereign ;  but, 
for  the  purposes  of  the  discussion,  I  will  assume  that  Mr. 
Carter's  theory  that  the  judge  should  follow  the  ideas 
of  right  and  wrong  prevalent  in  the  community  in  which 
he  lives,  rather  than  his  own,  does  lead  logically  and 
properly  to  the  result  that  Law  is  custom, — is  that  theory 
correct  ? 

A  judge  often  decides,  and  properly  decides,  against 
his  own  opinion  of  right  and  wrong ;  for  instance,  when  he 
is  compelled  by  the  precise  words  of  a  statute.  Let  us  see 
how  a  judge's  mind  works,  and  ought  to  work,  when  he 
has  to  pass  on  the  question  whether  an  act  was  right  or 
wrong,  and  we  will  suppose  his  own  opinion  to  be  that 
it  was  wrong. 

He  will  first  say  to  himself: — "Is  there  any  statute  of 
the  State  whose  judge  I  am  which  declares  that  the  act  in 
question  may  be  done?  If  there  is,  however  foolish  and 
wicked  such  legislation  appears  to  me,  I  must  follow  the 
statute,  and  abstain  from  deciding  that  the  act  was  wrong. 
But  I  find  no  such  statute." 

He  will  next  say: — "Is  there  any  judicial  precedent 
in  favor  of  the  act  ?  If  there  is,  however  much  I  may  re- 
gret that  my  predecessors  decided  as  they  did,  and  although 


CUSTOM  289 

had  I  been  in  their  place  I  should  have  held  otherwise, 
yet  I  will  follow  the  precedent  But  I  find  no  such  prece- 
dent." 

"Although  there  is  no  precedent  on  the  point,  yet  there 
may  be  a  consensus  of  judges  in  their  dicta,  and  of  jurists 
in  their  writings  against  my  notion.  In  face  of  the  opin- 
ions of  so  many  learned  men,  I  ought  to  distrust  my  own 
judgment,  I  do  distrust  it,  I  should  be  slow  to  rely  on  it 
against  theirs.  But  I  find  no  such  dicta  of  judges  or 
writings  of  jurists." 

"Is  there  any  actual  practice  in  the  community  against 
my  opinion?  If  there  is,  may  not  my  insisting  on  my 
opinion  produce  worse  evils,  by  introducing  change  and 
confusion  into  daily  life,  than  would  be  caused  by  a  con- 
tinuance of  the  practice  ?  For  instance,  although  there  be 
no  statute  or  precedent  as  to  the  rule  of  the  road,  the 
universal  practice,  in  most  of  the  United  States,  is  to  drive 
to  the  right,  and  though  I  should  think,  adopting  Mr. 
Carter's  expression,  that  there  would  be  better  conse- 
quences if  people  drove  to  the  left,  as  they  do  in  England ; 
that  the  English  practice  is  more  in  accord  with  the  prin- 
ciples of  utility,  tends  to  produce  the  greatest  happiness 
of  the  greatest  number,  is  in  short  more  moral;  yet  the 
contrary  practice  having  been  thoroughly  established  here 
and  forming  part  of  the  daily  conduct  of  life,  I  should  do 
more  harm  than  good  by  interference.  But  in  this  case 
before  me,  I  find  no  actual  practice." 

"Although  on  this  question  I  find  no  statutes,  no  ju- 
dicial precedent,  no  opinions  of  learned  men,  no  actual 
practice  against  my  notion,  yet  I  do  recognize  that  the 
prevalent,  perhaps  the  universal,  opinion  of  right  and 
wrong  in  the  community  on  this  matter  is  against  me." 


290          THE  NATURE  AND  SOURCES  OF  THE  LAW 

JSTow  what  ought  the  judge  to  do?  Should  he  follow 
his  own  sense  of  right  and  wrong  ?  Suppose  that  the  gen- 
eral opinion  in  his  community  is  that  a  harlot  has  a  right 
to  kill  a  man  who  has  hecome  tired  of  her  company, — 
should  he  so  decide? 

Of  course,  the  motive  of  a  judge's  opinion  may  be 
almost  anything, — a  bribe,  a  woman's  blandishments, 
the  desire  to  favor  the  administration  or  his  political 
party,  or  to  gain  popular  favor  or  influence ;  but  these  are 
not  sources  which  Jurisprudence  can  recognize  as  legiti- 
mate. Is  the  opinion  of  his  community  on  a  question  of 
morality,  of  right  and  wrong,  not  yet  embodied  in  prac- 
tice, a  legitimate  source  of  Law  to  which  a  judge  ought  to 
subordinate  his  own  opinion?  I  know  of  no  moralist  or 
jurist  who  has  answered  this  question  in  the  affirmative.1 
I  do  not  believe  Mr.  Carter  would  have  answered  it  in  the 
affirmative,  yet  it  seems  the  unavoidable  result  of  his 
theory.  Perhaps  he  would  have  said  that  the  judge  is 
appealing  from  Philip  drunk  to  Philip  sober,  but,  even 
assuming  that  custom  embraces  opinion  and  not  merely 
practice,  it  is  present  actual  custom  which  Mr.  Carter  de» 
clares  to  be  the  Law,  not  what  ought  to  be  custom,  nor 
what  will  be  custom. 

Mr.  Carter's  view  seems  to  amount  to  this:  there  are 
two  or  three  general  notions  of  popular  positive  morality 
with  which  the  rules  laid  down  by  the  judges  (and  legisla- 
tors) are  usually  not  inconsistent.  His  conclusion  is  that 
all  Law  (statutory  as  well  as  non-statutory)  is  custom. 
I  submit  that  his  conclusion  is  not  justified  by  his  premise. 

*See  pp.  10,  92,  ante.  For  instances  where  the  law  has  been  de- 
veloped without  regard  to  the  prevailing  opinion  in  the  community, 
Bee  article  by  Professor  Pound,  25  Harvard  Law  Rev.  140,  166-167. 


CUSTOM  291 

Although  custom  is  not  the  Law,  nor  even  the  sole 
source  of  Law,  it  is  undoubtedly  one  of  the  sources,  and  a  pendent  of 

custom 

very  important  source,  of  part  of  the  Law.  The  Law  is 
divided  into  substantive  and  adjective.  Adjective  Law, 
or,  as  it  is  technically  called,  procedure,  embraces  all  that 
is  necessary  to  enforce  the  substantive  Law  in  the  courts. 
It  includes  the  forms  of  action,  the  written  statements 
of  the  parties,  the  rules  of  evidence,  the  modes  of  appeal, 
and  the  enforcement  of  the  judgments  of  the  courts.  I 
suppose  that  no  laymen,  and  few  lawyers  whose  atten- 
tion has  not  been  drawn  to  the  subject,  realize  how  large 
a  part  of  the  whole  domain  of  the  Law  is  occupied  by 
procedure.  Especially  when  we  take  into  account  how 
great  has  been  the  development  and  extent  of  the  Law  of 
evidence  in  the  United  States,  a  very  large  part  of  the 
rules  laid  down  by  the  courts  concern  matters  of  procedure, 
and  with  procedure  custom  has  had  nothing  to  do;  except 
so  far  as  it  has  been  affected  by  statute,  the  adjective  Law 
has  undeniably  been  made  by  the  judges.  Mr.  Carter 
himself  admits  this  in  the  most  explicit  manner.  He  says 
of  the  Law  of  Procedure  that  it  is  a  "quite  distinct  and 
very  noticeable  branch  of  law,  one  which  is  involved  in 
the  daily  work  of  the  lawyers  more  than  any  other.  .  .  . 
But  it  has  no  direct  connection  with  conduct.  Its  rules 
are  not  rules  of  conduct.  .  .  .  The  law  of  procedure  can- 
not be  created  by  general  custom.  .  .  .  The  actual  work 
of  shaping  and  adapting  it  should,  for  obvious  reasons,  not 
be  undertaken  by  the  Legislature  itself,  but  should  be 
delegated  to  the  body  best  capable  of  performing  it.  This 
is  the  judges  whose  duty  it  is  to  apply  it.  ...  In  all  this 
body  of  contrivance,  with  its  multitude  of  officers,  many 
commands  are  prescribed  concerning  the  duties  of  the 


292 


THE  NATURE  AND  SOURCES  OF  THE  LAW 


Custom 
important: 
in  inter- 
pretation 


officers  and  of  the  members  of  the  community  in  relation 
to  the  public  establishment,  and  a  vast  quantity  of  legal 
obligation  and,  therefore,  of  law  is  created ;  but  the  nature 
of  it  is  widely  different  from  the  law  of  custom  which 
governs  the  private  transactions  of  men."  * 

In  considering,  therefore,  how  far  custom  is  a  source  of 
Law,  we  are  confined  to  the  substantive  Law.  In  what 
ways  is  custom  a  source  of  the  substantive  Law  ?  I  have 
denied  the  claim  of  custom  to  be  the  only  source  of  the 
Law,  but  it  is  a  very  important  source,  nevertheless. 

The  part  of  the  Law  in  which  custom  has  the  most 
influence  is  in  the  sphere  of  interpretation.  The  judges 
determine  the  construction  of  contracts;  they  base  the 
construction  upon  the  meaning  of  words;  and  the  mean- 
ing of  words,  except  when  they  are  used  technically  or  the 
parties  to  the  contract  are  shown  to  have  given  them  a 
special  meaning,  is  established  by  general  practice,  that  is 
custom,  quem  penes  arbitri/wm,  est  et  jus  et  norma 
loqtiendi.2 

Perhaps  I  ought  to  refer,  in  passing,  to  the  doctrine 
put  forth  by  the  late  learned  chief  justice  of  New  Hamp- 
shire, Chief  Justice  Doe.  He  declared  that  the  question 
of  the  meaning  of  a  contract  was  a  question  of  fact,  not 
of  Law.  Of  course  he  did  not  deny  that  it  was  a  ques- 
tion upon  which  the  judges  must  pass,  but  he  said  it  was 
not  Law  but  fact  that  they  were  passing  upon.3  To  dis- 
cuss what  element  of  truth  there  is  in  this  doctrine  would 
lead  us  too  far  afield.  Suffice  it  to  say  that  in  the  domain 

'Pp.  238-240. 

1  "whose  arbitrary  away" 

"words,  and  the  forms  of  language,  must  obey." 

Horace,  Art  Poetioa,  72,  Francis's  trans. 
•E.g.  Kendall  v.  Green,  67  N.  H.  557,  561. 


CUSTOM  293 

of  interpretation,  so  far  as  the  judge  is  laying  down  a  rule 
of  Law,  except  where  there  is  a  statute  or  precedent  to 
bind  him,  he  is  basing  the  rule  on  custom. 

Another  part  of  the  Law  in  which  custom  plays  an  in  ques- 

<•  1-1  tions  of 

important  part  is  in  cases  of  negligence,  cases  which  are 
occupying  the  courts  to  an  alarming  extent,  threatening 
their  efficiency  in  the  administration  of  justice  generally. 
In  determining  whether  a  man  has  been  reckless  or  negli- 
gent in  doing  or  not  doing  an  act,  we  do  not  inquire 
whether  he  has  taken  every  possible  precaution.  The 
test  is  whether  he  has  acted  as  a  reasonable  man,  and 
this  must  be  settled  largely  upon  whether  he  has  acted  in 
accordance  with  general  practice;  that  is,  custom. 

Sometimes  the  courts  undertake  to  lay  down  a  rule  that 
certain  acts  or  omissions  to  act  amount,  as  matter  of  Law, 
to  negligence.  Thus  in  some  jurisdictions,  a  man  who, 
in  crossing  a  railroad  track,  fails  to  stop,  look,  and  listen, 
is,  as  matter  of  Law,  negligent ;  and  some  courts  have  held 
that  if  a  man  riding  in  a  railroad  car  puts  his  arm  out 
of  the  window,  he  is,  as  matter  of  Law,  guilty  of  negli- 
gence. When  such  a  decision  is  first  made,  it  is  often 
based  on  general  practice;  that  is,  on  custom. 

In  most  cases,  however,  the  court  instructs  the  jury 
that  the  party  who  is  alleged  to  have  been  negligent  was 
bound  to  act  as  a  reasonable  man,  and  leaves  it  to  them 
to  determine  whether  he  has  so  acted.  Here  it  is,  perhaps, 
inexact  to  say  that  custom  is  a  source  of  the  Law,  and 
it  woulcl  be  better  to  say  that  it  is  a  ground  of  the  de- 
cision. 

It  is  to  be  borne  in  mind  that  in  all  cases  where  cus- 
tom is  correctly  claimed  to  be  a  source  of  Law,  this  may 
be  true  only  of  the  first  case  in  which  a  court  lays  down 


294          THE  NATURE  AND  SOURCES  OF  THE  LAW 

a  rule,  and  that  subsequent  decisions  may  rest  on  prece- 
dent rather  than  on  custom, 
judicial  Aside  from  the  classes  which  I  have  mentioned,  it  is 

decisions  I-IIIT  1-1  •> 

most  fre-     probable  that  the  part  which  custom  has  in  truth  played 

quently  lie    r  r     J 

of  £!awln  as  a  source  °^  -^aw  nas  beei1  much  exaggerated.  The  con- 
trary belief  rests  largely  on  a  fiction.  There  is  every 
reason  to  suppose  that  hundreds  of  rules  in  the  substan- 
tive Law  originated  in  the  courts,  and  that  the  bulk  of 
the  community  had  nothing  to  do  with  them  and  knew 
nothing  about  them.  How  can  we  believe  that  the  Rule 
in  Shelley's  Case,1  for  instance,  had  its  origin  in  popular 
custom?  Indeed,  with  many  rules,  such  as  the  Eule 
against  Perpetuities,  we  know  the  history  of  their  origin 
and  development  and  that  they  were  the  creatures  of  the 
judges.2 

In  a  matter  where  the  intention  of  the  parties  is  the 
principal  factor,  they  may  have  intended  to  contract  with 
reference  to  a  practice  in  the  community  at  large,  or  in 
a  particular  trade  or  occupation  or  locality.  This  is 
usually  a  question  of  fact.  But  sometimes  when  such  a 
practice  has  become  universal  in  the  community,  or  in  the 
trade,  occupation,  or  locality,  the  courts  have  laid  down  a 
rule  that  the  custom  shall  be  imported  into  the  contract 
unless  the  contrary  is  proved.  Here  custom  is  a  source 
of  Law.  But  in  cases  not  of  contract  the  influence  of 
custom  upon  the  making  of  the  Law  is  much  less  than  has 
been  sometimes  supposed. 

Mr.  Greer s  has  some  remarks  on  this  point.  He 
says: — "It  is  obvious  that  there  is  in  principle  a  great 

1See  p.  142,  ante. 
*See  pp.  236-238,  ante. 
*9  Law  Quart.  Rev.  153. 


CUSTOM  295 

difference  between  customs  which  create  rights  and  obliga- 
tions through  the  medium  of  a  contract  on  the  one  hand, 
and  customs  which  create  rights  and  obligations,  as  it 
were  directly,  and  independently  of  any  contract,  on  the 
other.  Whether  or  not  a  custom  should  be  treated  as  an 
implied  term  in  a  contract  is,  properly  speaking,  a  ques- 
tion of  fact  in  each  case,  part  of  the  larger  question, — 
What  was  the  contract  between  the  parties?  Except 
that  the  decisions  have  established  certain  presumptions 
in  favor  of  customs  of  the  trade,  the  effect  of  custom  on 
contract  is  not  a  subject  for  general  rules  of  law,  but  for 
decision,  according  to  the  particular  facts  of  each  case. 
On  the  other  hand  the  rules  which  regulate  the  effect  of 
custom  in  creating  rights  and  liabilities  between  people 
independently  of  any  contractual  relationship  are  entirely 
matter  of  law  and  not  of  fact.  It  follows  that  the  con- 
siderations which  apply  to  the  solution  of  the  question, — 
When  should  a  custom  be  deemed  part  of  the  Common 
Law  ?  are  very  different  from  those  that  are  applicable 
when  the  question  is  whether  a  given  custom  is  to  be  held 
to  be  part  of  a  particular  contract." 

In  other  words,  a  great  part  of  the  duty  of  the  courts 
is  to  determine  the  meaning  of  a  party  to  an  agreement, 
and  to  do  this  the  customs  of  the  community  of  which 
the  party  is  a  member,  or  of  the  class,  as  stock-brokers,  to 
which  he  belongs  or  with  which  he  is  dealing,  are  facts  to 
be  taken  into  account  like  other  facts.  Sometimes  a  custom 
is  so  universal  that  the  courts  frame  a  rule  of  Law  that 
certain  agreements  shall  be  presumed  to  have  been  made  in 
accordance  with  it;  and,  as  different  forms  of  business 
arise,  as  undoubtedly  they  will  arise,  especially  with  ref- 
erence to  the  use  of  new  mechanical  devices,  such  as  tele- 


296          THE  NATURE  AND  SOURCES  OF  THE  LAW 

phones  or  wireless  telegraphs,  customs  will,  as  rules  for 
determining  the  meaning  of  agreements,  be  taken  up  into 
the  Law. 

But  when  questions  come  up  of  giving  rights  or  im- 
posing duties  apart  from  contract,  then  we  have  a  differ- 
ent state  of  things.  Aside  from  the  question  of  negligence, 
of  which  I  have  spoken,  it  would  not  be  easy  to  find  an 
instance  where  courts  at  the  present  day  (at  least  in 
Common  Law  countries)  have  had  recourse  to  a  custom 
to  fasten  a  liability  upon  a  man. 

Miners'  One  remarkable  instance,  however,  in  late  years  of  the 

use  of  custom  as  a  source  of  Law  in  matters  non-con- 
tractual can  be  found — it  is  the  introduction  of  the  miners* 
customs  in  California.  The  discovery  of  gold  brought, 
in  1849,  a  large  and  turbulent  population  into  an  almost 
uninhabited  country;  the  civil  authority  could  be  but 
feebly  enforced,  and  the  miners  made  rules  for  them- 
selves. These  rules  related  not  only  to  matters  of  con- 
tract, but  also  to  questions  of  property  and  possession. 
They  prescribed  how  possession  was  to  be  taken,  how 
much  could  be  taken  into  possession  (four  hundred  feet 
by  a  discoverer  and  two  hundred  by  a  subsequent  locator 
on  a  lode),  and  how  possession  was  lost.  These  rules 
were  adopted  into  the  Law,  and,  though  not  formally 
enacted,  they  were  recognized  by  the  legislature  and  thus 
received  a  statutory  sanction  as  sources  of  Law.  By  the 
Civil  Practice  Act  of  California  of  1851,1  it  is  provided 
that,  "in  actions  respecting  'mining  claims/  proof  shall 
be  admitted  of  the  customs,  usages,  or  regulations  estab- 
lished and  in  force  at  the  bar,  or  diggings,  embracing 
such  claim;  and  such  customs,  usages,  or  regulations, 
*See  621;  re-enacted,  Code  of  Civil  Procedure,  1872,  sec.  748. 


CUSTOM  297 

when  not  in  conflict  with  the  constitution  and  laws  of  thia 
State,  shall  govern  the  decision  of  the  action."  In  Yale'a 
Legal  Titles  to  Mining  Claims  and  Water  Rights  in  Cali- 
fornia, San  Francisco,  1867,  will  be  found  an  interesting 
account  of  these  mining  customs  and  their  becoming  Law. 

"Not  only  does  custom  play  a  small  part,  at  the  present  custom 
day,  as  a  source  of  non-contractual  Law,  but  it  is  doubt-  from 

17 '  .      Judicial 

ful  if  it  ever  did,  doubtful  whether,  at  all  stages  of  legal  decisions 
history,  rules  laid  down  by  judges  have  not  generated  cus- 
tom, rather  than  custom  generated  the  rules.  It  has 
often  been  assumed,  almost  as  a  matter  of  course,  that 
legal  customs  preceded  judicial  decisions,  and  that  the 
latter  have  but  served  to  give  expression  to  the  former, 
but  of  this  there  appears  to  be  little  proof.  It  seems  at 
least  as  probable  that  customs  arose  from  judicial  decisions. 
Such  was  the  opinion  of  Maine.  In  his  Ancient  Law  he 
says: — "Custom  [is]  a  conception  posterior  to  that  of 
Themistes  or  judgments.  However  strongly  we,  with  our 
modern  associations,  may  be  inclined  to  lay  down  a  priori 
that  the  notion  of  a  custom  must  precede  that  of  a  judicial 
sentence,  and  that  a  judgment  must  affirm  a  custom  or 
punish  its  breach,  it  seems  quite  certain  that  the  historical 
order  of  the  ideas  is  that  in  which  I  have  placed  them. 
The  Homeric  word  for  a  custom  in  the  embryo  is  some- 
times 'Themis'  in  the  singular, — more  often  'Dike/  the 
meaning  of  which  visibly  fluctuates  between  a  'judgment* 
and  a  'custom'  or  'usage'."  1 

Ihering,  in  his  Eampf  urn's  Recht,*  has  pointed  out, 
how  fallacious  is  the  comparison  between  the  growth  of 

1  Ancient  Law  (Pollock's  ed.) ,  4,  5.    On  Themis  and  Dike,  cf.  E.  C. 
Clark,  Jurisprudence,  o.  4. 
1  (10th  ed.)  5  et  teq. 


298          THE  NATURE  AND  SOURCES  OF  THE  LAW 

language  and  the  growth  of  the  Law, — the  supposition 
that  in  old  Rome  the  Law  that  a  creditor  could  sell  his 
debtor  into  slavery  was  formed  in  no  other  fashion  than 
the  rule  that  cum  governs  the  ablative.  To  have  a  right  by 
Law  or  custom  means  that  by  Law  or  custom  another 
man's  freedom  of  action  is  restricted,  that  he  must  act  or 
refrain  from  acting,  not  as  he  wishes,  but  as  another 
wishes ;  and  it  is  probable  that  this  abnegation  of  self  did 
not  arise  quietly,  but,  on  the  contrary,  that  the  assertion 
of  superiority  had  to  be  made  good  by  the  forces  of 
society  being  brought  to  bear.  It  does  not  seem  likely 
that  the  part  of  the  Law  which  does  not  merely  give 
expression  to  principles  for  the  interpretation  of  agree- 
ments, but  which  imposes  duties  as  the  consequence  of 
occupying  certain  relations  or  doing  certain  acts,  could 
have  arisen  from  custom  alone,  without  the  aid  of  judicial 
decision.  Take,  for  instance,  the  liability  of  innkeepers 
for  goods  stolen  from  their  inns.  This  is  said  to  rest  on  a 
custom,  but  it  does  not  seem  likely  that  innkeepers  would 
voluntarily  subject  themselves  to  such  a  liability;  nor,  to 
take  another  instance,  that  a  man  who  had  assaulted  an- 
other or  converted  his  chattels  would  make  compensation, 
unless  compelled  by  the  courts. 

What  has  been  said  of  customs  in  general  may  be  true 
even  of  many  of  the  local  customs  which  are  so  common 
in  England.  They  may  also  have  had  their  origin  in  de- 
cisions of  the  local  courts.  Thus,  the  custom  of  borough 
English  that  the  youngest  son  should  inherit,1  or  the  cus- 
tom of  London  that  if  a  horse  left  with  an  innkeeper  had 
eaten  off  his  head,  the  innkeeper  might  sell  him,2  or  the 

*Litt.  §  165;  2  Pollock  &  Maitland,  Hist.  Eng.  Law  (2d  ed.),  279. 
*  M oss  v.  Townsend.  1  Buls.  207. 


CUSTOM  299 

custom  in  the  forest  of  Hardwicke  that  any  one  stealing 
any  commodity  of  the  value  of  thirteen  pence  halfpenny 
"either  hand-habend,  back-berand  or  confessand,"  instead 
of  being  hanged,  should  be  beheaded  in  the  town  of  Hali- 
fax,1 are  all  likely  to  have  had  their  origin  in  judicial 
decisions. 

In  the  Common  Law,  as  has  been  said,  custom  has 
been  deemed  a  more  copious  source  of  Law  than  the  facts 
will  warrant,  but,  back  of  custom,  the  courts  and  writers 
have  not  felt  called  upon  to  go;  in  Germany,  however, 
there  has  been  much  discussion  whether  custom  is  a  source 
of  Law  or  whether  it  is  only  evidence  of  previously  exist- 
ing Law. 

A  theory  which  has  widely  prevailed  in  Germany  is 
that  custom  is  not  a  source  of  Law,  but  is  only  evidence  of  the  Law 
or  the  means  of  acquiring  knowledge  of  what  the  Law  is ; 
that  it  is  the  conviction  of  the  Volksgeist  that  it  is  neces- 
sary that  a  certain  thing  should  be  Law  which  makes  it 
Law;  that  custom  is  only  evidence  that  there  is  such  a 
conviction  of  the  Volksgeist.  This  theory  was  first  pro- 
pounded by  Savigny,  and  afterwards  by  Puchta,  and  the 
great  reputation  of  these  men  and,  at  least  in  the  case 
of  Savigny,  the  deservedly  great  reputation,  has  caused 
the  theory  to  find  wide  acceptance,  not  only  in  Germany 
but  in  other  countries.2 

One  objection  to  this  theory  is  that  it  rests  on  a  fiction. 
There  is  no  such  thing  in  rerum  natura  as  a  Volksgeist 
having  real  consciousness  and  convictions.  The  fact  is 
that  certain  individuals,  exercising  their  separate  wills, 

1  Halifax  and   its   Gibbet   Law  placed   in    a  true   light.     Halifax 
(1708).     (By  Samuel  Midgley.)     Reprint,  1886,  p.  13. 
»P.  89,  ante. 


300 


THE  NATURE  AND  SOURCES  OF  THE  LAW 


Decisions 
often  in- 
dependent 
of  custom 


repeatedly  do  certain  acts,  and  judges  may  consider  with 
favor  these  modes  of  action  and  apply  them  as  rules;  but 
the  matter  is  not  made  easier  by  saying  that  such  repeated 
acts  are  the  means  of  knowing  the  necessary  convictions 
of  a  non-existent  entity. 

As  the  views  of  the  German  philosophers  which  ex- 
ercised an  overmastering  influence,  even  on  such  minds 
as  that  of  Savigny,  are  becoming  antiquated  and  are  los- 
ing their  following  in  their  native  country,  the  later  Ger- 
man jurists  are  going  back  to  the  theory  which  prevailed 
before  the  rise  of  the  so-called  Historic  School  and  are 
holding  that  it  is  custom  which  is  a  source  of  Law  and  not 
the  Ueberzeugung  (conviction)  of  the  Volksgeist.1  It 
must  be  said,  however,  that  the  Imperial  Court  seems  to 
have  a  leaning  for  the  Savigny-Puchta  theory.2 

Customs,  it  is  very  probable,  owed  their  origin  in  many 
cases  to  judicial  decisions,  but  even  in  those  cases  in 
which  customs  may  have  preceded  the  decisions,  they  were 
often,  in  earlier  days,  taken  up  into  the  Law  by  the 
courts,  not  simply  because  they  were  the  customs  of  the 
community,  but  because  they  commended  themselves  to 
the  judges'  own  sense  of  right  or  policy,  or  frequently 
because  the  judges  believed  or  feigned  to  believe  that  they 
were  of  supernatural  origin.  But,  more  than  this,  in 
early  times  it  was  the  same  privileged  class,  generally 
sacerdotal  in  its  character,  which  furnished  both  legisla- 
tors and  judges,  and  from  the  accounts  that  we  have  of 
the  Hebrews,  it  is  clear  that  it  was  not  what  was  believed 

*  See  1  Windscheid,  Pand.  §  16,  note  1 ;  Zitelmana,  66  Arch.  f.  civ. 
Pr.  323;  Riimelin,  27  Jahrb.  f.  Dogm.  153. 

"See  Zitelmann,  ubi  sup.  and  also  12  Entsch.  dea  Reichsg.  Civ. 
294;  26  Entsch.  Civ.  193. 


CUSTOM  301 

to  be  the  customs  of  the  people,  but  what  was  believed 
to  be  the  expressed  will  of  God,  that  was  taken  up  into 
the  Law;  and,  indeed,  that  the  Law  was  antagonistic  in 
the  extreme  to  the  beliefs  and  customs  of  the  nation.1 

1  Compare  p.  92,  unt«, 


CHAPTER  XIII 

MORALITY  AND  EQUITY 

Morality  WHEN  a  case  comes  before  a  court  for  decision,  it  may 

a  necessary  ' 

source  of  be  that  nothing  can  be  drawn  from  the  sources  hereto- 
fore mentioned ;  there  may  be  no  statute,  no  judicial  prece- 
dent, no  professional  opinion,  no  custom,  bearing  on  the 
question  involved,  and  yet  the  court  must  decide  the  case 
somehow;  the  decision  of  cases  is  what  courts  are  for. 
The  French  Code  Civil  says:  "Le  juge  qui  refusera  de 
juger  sous  pretexte  du  silence,  de  I'obwwrite  ou  de  I'in- 
suffisance  de  la  loi,  pourra  etre  poursuivi  comme  coupable 
de  deni  de  justice/' *  And  I  do  not  know  of  any  system 
of  Law  where  a  judge  is  held  to  be  justified  in  refusing 
to  pass  upon  a  controversy  because  there  is  no  person  or 
book  or  custom  to  tell  him  how  to  decide  it.  He  must 
find  out  for  himself;  he  must  determine  what  the  Law 
ought  to  be;  he  must  have  recourse  to  the  principles  of 
morality. 

In  organized  communities,  political  or  other,  the  courts, 
in  laying  down  rules  for  the  decision  of  cases,  are  hemmed 
in  and  limited  in  many  ways ;  the  duty  and  responsibility 
of  considering  what  rules  they  ought  to  apply  is  largely 
taken  away  from  them,  and  there  is  imposed  upon  them, 
or  they  impose  upon  themselves,  by  reason  of  statutes, 
precedents,  professional  opinion  or  custom,  lines  of  con- 

»Art.  4. 
302 


MORALITY  AND  EQUITY  303 

duct  to  be  followed  without  regard  to  their  moral  char- 
acter ;  but  where  these  limitations  have  not  been  imposed, 
then  it  is  safe  to  say  that  in  all  civilized  societies  the 
courts  are  impliedly  directed  to  decide  in  accordance  with 
the  precepts  of  morality. 

Of  course,  I  take  morality  in  its  largest  sense,  and  Scope  of 
mean  by  moral  conduct,  right  conduct.    In  many,  perhaps  "morality" 
in  most,  of  the  questions,  which  are  raised  in  the  Law, 
morality  presents  itself  in  the  guise  of  public  policy. 
But  even  when  the  motive  of  the  judge  is  simply  to  bring 
one  doctrine  into  harmony  with  another  doctrine,  or  to 
extend  a  doctrine  by  analogy,  he  is  acting  in  an  ethical 
way,  for  it  is  a  good  thing  in  itself  that  the  rules  of  the 
Law  should  be  harmonious,  and  should  be  extended  har- 
moniously. 

It  is  from  this  source  that  a  great  amount  of  our 
Law  is  drawn.  In  fact  it  is  the  way  in  which  most  new 
Law  is  now  brought  in,  except  what  is  due  to  the  statute- 
book  ;  and  it  should  be  observed  that  this  source  not  only 
works  alone  when  the  others  fail,  but  that  when  the  others 
are  in  operation,  this  mingles  with  them  and  largely  in- 
fluences their  direction  and  effect.  Whether  a  statute 
shall  be  interpreted  one  way  or  another  is  often  determined 
by  the  moral  character  which  the  one  or  the  other  interpre- 
tation will  give  to  it ;  and  there  are  few  judicial  precedents 
or  professional  opinions  or  customs  whose  position  as 
sources  of  Law  is  not  strengthened  or  weakened  by  the 
fact  of  their  agreeing  or  disagreeing  with  sound  ethical 
principles.  In  fact,  in  a  large  number  of  cases,  the 
sources  of  the  Law  are  indistinguishably  joined. 

Austin,  in  his  Province  of  Jurisprudence  Determined,  ^topi^for 
having  devoted  the  first  lecture  to  a  consideration  of  the  prudenc» 


304    THE  NATURE  AND  SOURCES  OF  THE  LAW 

Mature  of  Law,  takes  up  in  the  second  the  question  of 
the  index  to  the  unrevealed  Divine  Law,  and  discusses 
it  at  great  length  through  three  lectures ;  as  is  well  known, 
he  arrives  at  the  conclusion  that  utility  is  the  index  of  the 
Divine  Law  and  the  test  of  morality. 

It  is  hard  to  defend  Austin's  consistency  in  thus  giv- 
ing up  so  large  a  part  of  the  volume  to  a  discussion  on 
the  test  of  morality.  The  main  thesis  of  the  book  is  to 
show  that  positive  Law  is  the  command  of  the  Sovereign ; 
that  its  existence  and  force  are  in  no  way  dependent  upon 
the  ethics  of  its  contents;  and  that  positive  Law  is  the 
subject-matter  of  Jurisprudence  as  compared  with  the 
Science  of  Legislation.  And  this  has  often  been  remarked 
upon.  Thus  Sir  Henry  Maine : * — "The  truth  is  that 
Austin's  system  is  consistent  with  any  ethical  theory ;  and, 
if  Austin  seems  to  assert  the  contrary,  I  think  the  cause 
is  to  be  sought  in  his  firm  conviction  of  the  truth  of  his 
own  ethical  creed,  which,  I  need  not  say,  was  Utilitarian- 
ism in  its  earlier  shape.  .  .  .  Devotion  to  this  philosophy, 
coupled  with  what  I  hold  to  be  a  faulty  arrangement,  has 
produced  the  most  serious  blemish  in  the  'Province  of 
Jurisprudence  Determined.'  The  second,  third,  and 
fourth  lectures  are  occupied  with  an  attempt  to  identify 
the  law  of  God  and  the  law  of  Nature  (so  far  as  these 
last  words  can  be  allowed  to  have  any  meaning)  with 
the  rules  required  by  the  theory  of  utility.  .  .  .  Taken  at 
its  best,  it  is  a  discussion  belonging  not  to  the  philosophy 
of  law,  but  to  the  philosophy  of  legislation.  The  jurist, 
properly  so  called,  has  nothing  to  do  with  any  ideal  stand* 
ard  of  law  or  morals." 

1  Early  Hist,  of  Inst.  368-370. 


MORALITY  AND  EQUITY  305 

Austin's  point  of  view,  his  discussion  of  the  test 
of  morality  may  not  be  justifiable,  but  when  we  believe  the 
doctrines  of  morality  to  be  a  source,  and  one  of  the  main 
sources,  from  which  the  Law  is  drawn,  they  are  as  ap- 
propriate for  the  consideration  of  Jurisprudence  as  are 
the  statutes,  precedents,  professional  opinions,  or  cus- 
toms to  which  the  courts  have  recourse  for  their  rules. 

Indeed,  if  Jurisprudence  is  to  be  a  progressive  science, 
it  must  take  cognizance  of  the  changes  which  knowledge 
or  ignorance  has  produced  in  human  beliefs  and  ideals. 
Take  three  communities,  let  them  have  the  same  statutes 
and  the  other  sources  of  Law  the  same,  but  let  the  courts 
of  one  of  them  adopt  the  Koran  as  its  index  of  morality, 
another  the  Bible  as  interpreted  in  England  one  hundred 
and  fifty  years  ago,  and  another  the  scheme  of  morals, 
whatever  it  may  be,  which  prevails,  say  in  France,  at  the 
present  day,  the  Laws  of  those  three  communities  will 
show  before  long  a  varying  development.1 

What  is  the  true  test  of  morality  is  not  a  question  morality 

1  "Now  for  what  I  have  called  the  deontological  method  of  deal- 
ing with  the  Law,  the  consideration  of  its  fitness  or  unfitness  to 
meet  the  needa  of  society.  This  is  for  legislators  and  the  advisers 
of  legislators.  How  far  is  it  a  method  to  be  followed  by  judges  and 
jurists?  The  opinions  of  judges  in  the  Common  Law  and  of  jurists 
in  the  Civil  Law  on  what  society  needs  have  profoundly  influenced 
the  Law,  and  for  the  better.  And  what  could  be  a  happier  state  of 
affairs  than  that  judges  and  jurists  should  approach  the  Law  from 
the  side  of  the  public  welfare  and  seek  to  adapt  it  to  the  promotion 
of  the  common  good?  And  yet  we  must  use  caution  here.  Nothing 
would  be  more  to  be  desired  than  that  judges  and  jurists  should 
mould  and  guide  the  Law  to  make  it  correspond  to  the  needs  of 
society,  if  they  know  what  the  needs  of  society  are.  But  this  is  a 
tremendous  if;  they  probably  do  not  know;  there  is  little  in  their 
calling  and  life  to  have  given  them  that  knowledge.  Judges  and 
jurists  are  men  of  their  time;  they  are  swayed,  like  the  rest  of  us, 
by  the  Zeitgeist,  and  it  is  well  that  they  are;  but  that  they  should 
consciously  set  about  developing  the  Law,  say  in  a  socialistic  or 
anti-socialistic  manner,  is  not  well."  (Nature  and  Sources  of  the 
Law,  1st  ed.,  sections  7  and  8.)  See  also  pp.  139-144,  ante. 


306          THE  NATURE  AND  SOURCES  OF  THE  LAW 

•which  can  be  answered  here.  It  is  obvious  that  it  ia 
very  important  for  the  theory  of  the  Law.  To  take  an 
instance:  In  many  of  the  States,  the  question  of  the 
liability  of  the  Pullman  Car  Company  for  the  loss  by  theft 
from  a  sleeping  car  of  a  commercial  traveller's  bag  con- 
taining samples  of  hat  pins,  is  a  novel  one,  and  the  judges 
are  or  will  be  called  on  to  make  Law  upon  it.  What 
question  should  a  judge  ask?  Should  it  be,  "What  pro- 
tection of  a  sample  bag  is  desirable  to  secure  the  greatest 
happiness  of  the  greatest  number?"  or  should  it  be, 
"What  is  my  intuitive  moral  sense  on  the  subject  of  Pull- 
man cars?"  or  again,  should  it  be,  "What  is  God's  re- 
vealed or  unrevealed  will  touching  bagmen?"  or  again, 
"What  dealing  with  drummers  is  most  in  accordance  with 
the  Freedom  of  the  Will?"  or,  "What  protection  to  hat 
pins  is  most  according  to  Nature  ?"  or  is  it  a  mixed  affair 
to  which  two  or  more  of  these  tests  should  be  applied  ?  It 
is  conceivable  that  application  of  these  different  tests 
might  lead  to  different  results. 

But  although  the  test  selected  for  determining  the  mor- 
ality of  a  course  of  conduct  and,  therefore,  the  propriety 
of  a  decision,  is  theoretically  of  the  first  importance,  yet 
it  must  be  admitted  that  the  conscious  adoption  of  one 
test  rather  than  another  by  a  judge  is  not  of  so  much 
practical  consequence  as  might  at  first  be  supposed,  for, 
by  a  familiar  principle  of  human  nature,  when  a  man 
thinks  that  a  thing  ought  to  be  done,  he  will  not  find  it 
difficult  to  make  it  stand  all  the  tests  of  morality  that 
may  be  applied  to  it,  and  he  will  come  to  the  conclusion 
that  the  greatest  happiness  of  the  greatest  number,  the 


MORALITY  AND  EQUITY  307 

dictates  of  conscience,  the  will  of  God,  the  Freedom  of 
the  Will,  and  Nature,  unite  in  demanding  it.1 

Whatever  may  be  the  test  to  establish  the  ultimate  prin- 
ciples of  morality,  the  doctrine  of  utility  must  be  all- 
important  in  working  out  details.  But  whose  good  should 
a  court  seek,  the  good  of  the  community  whose  organ 
it  is,  or  the  good  of  the  world  at  large?  Should  it,  for 
instance,  give  preference  to  the  domestic  over  the  foreign 
creditors  of  a  bankrupt?  The  true  doctrine,  though  I 
advance  this  with  some  diffidence,  would  seem  to  be  that 
the  position  of  the  courts  should  be  much  the  same  as  that 
of  a  private  individual.  With  an  individual,  regard  for 
himself,  for  his  family,  and  for  others,  all  go  to  make 
up  a  complete  morality;  so,  with  a  judge,  as  an  organ 
of  the  State,  regard  for  the  members  of  the  State  and  for 
persons  not  members  of  the  State  should  be  joined.  The 
science  of  ethics,  whatever  it  may  do  in  the  future,  haa 
as  yet  made  trifling  progress  in  settling  any  practical 
rules  for  the  decision  of  such  questions. 

Equity  is  sometimes  spoken  of  as  one  of  the  sources  Equity 
of  Law,  but  it  seems  neither  desirable  nor  possible  to  dif- 
ferentiate "equitable"  considerations  from  other  considera- 
tions looking  to  the  general  weal  out  of  which  the  courts 
frame  rules. 

Equity  with  us  consists  of  the  rules  that  were  brought 
into  the  English  Law  by  the  special  court  held  by  the 
Chancellor.  Austin 2  and  Maine 3  take  cequitas  in  the 

1  It  should  be  observed  as  an  excuse,  if  not  a  justification,  for  much 
of  the  talk  about  the  Law  of  Nature,  that  if  accordance  with  Nature 
be  the  test  of  morality,  then  it  is  not  wrong  to  speak  of  Nature  as  a 
eource  of  the  Law. 

»2  Jur.  (4th  ed.)  577. 

'Ancient  Law,  chap.  3. 


308  THE  NATURE  AND  SOURCES  OP  THE  LAW 

Roman  Law  as  having  an  analogous  meaning;  they  apply 
the  term  to  those  rules  which  the  praetors  introduced 
through  the  Edict  in  modification  of  the  jus  civile.  The 
analogy  between  the  praetor  and  chancellor  is  certainly 
striking  and  had  often  been  remarked  before,  as  by 
Gilbert  in  his  Lex  Prcetoria,1  but  it  seems  to  be  an  error  to 
suppose  that  cequitas  had  this  sense  in  the  Roman  Law. 
Professor  Clark  doubts  "whether  cequitas  is  ever  clearly 
used  by  the  Roman  jurists  to  indicate  simply  a  department 
of  law ;"  2  and  an  examination  of  the  authorities  more 
than  justifies  his  doubt ;  cequitas  is  opposed  to  strictum  jus, 
and,  as  Professor  Clark  says,  varies  in  meaning  "between 
reasonable  modification  of  the  letter,  an,d  substantial  jus- 
tice" ;  and  Kriiger  appears  to  be  right  in  taking  csquitas 
as  a  frame  of  mind  in  dealing  with  legal  questions  and  not 
as  a  source  of  Law.3  It  is  true  that  the  praetor's  Edict 
was  a  field  favorable  for  the  exercise  of  this  "sweet 
reasonableness,"  but  it  was  not  the  only  one,  and  in  the 
constitution  of  Severus  and  Antoninus  (A.D.  202),  con- 
cerning the  amendment  of  pleadings,  cequitas  is  given  as 
a  reason  for  going  outside  the  provisions  of  the  Edict  in 
allowing  amendments,  "prout  edicti  perpetui  nnonet  auc~ 
toritas  vel  jus  reddentis  decemit  cequitas."  * 
Relation  A  chief  object  in  these  lectures  has  been  an  attempt  to 

of  Law  to  J 

Morality  show  that  one  of  the  main  difficulties  and  causes  of  con- 
fusion in  Jurisprudence  has  been  the  failure  to  distinguish 
between  Law  and  the  sources  of  Law.  The  Law  of  a 

1  History  and  Practice  of  the  High  Court  of  Chancery,  chap.  2, 
et  passim. 

JE.  C.  Clark,  Jurisprudence,  367. 

•Kriiger,  Geschichte  d.  Quellen,  §  17,  pp.  125,  126. 

4  "Accordingly  as  the  authority  of  the  perpetual  edict  prescribes, 
or  the  equity  of  him  who  is  rendering  justice  determines.  Cod.  II, 
1,  3.  On  the  Edict,  see  p.  199,  ante. 


MORALITY  AND  EQUITY  309 

country  or  other  organized  body  of  men  is  composed  of 
the  rules  for  conduct  that  its  courts  follow  and  that  it 
holds  itself  out  as  ready  to  enforce;  no  ideas,  however 
just,  that  its  courts  refuse  to  follow  are  Law,  and  all 
rules  which  they  follow  and  to  which  it  enforces  obedi- 
ence are  Law ;  and  to  introduce  any  notion  of  the  Law  of 
Nature  or  of  nicht  positivisches  Recht  into  the  conception 
of  the  Law  is  to  take  a  step  backward  in  Jurisprudence. 
It  is  depressing  to  see  a  recent  writer  like  Mr.  George  H. 
Smith  1  taking  up  this  exploded  superstition,  when  the 
Germans  who  have  so  long  labored  under  it  are  throwing 
off  the  burden.2 

On  the  other  hand,  it  is  the  failing  of  many  advocates 
of  codification  to  regard  the  Law  too  much  as  a  fixed 
product  of  statutes,  precedents,  and  customs,  and  not  to 
take  into  sufficient  account  the  growth  and  change  of  the 
Law.  This  growth  and  change  is  not  a  mere  weaving  of 
spider  webs  out  of  the  bowels  of  the  present  rules  of 
Law;  a  source  of  the  Law,  not  the  only  source,  but  a 
source  and  a  main  source,  is  found  in  the  principles  of 
ethics.  These  principles,  therefore,  are  legitimately  a 
part  of  Jurisprudence,  and  the  more  the  bounds  of  Com- 
parative Jurisprudence  are  extended,  the  greater  part  will 
they  play.3 

*In  his  book  cited  above,  p.  15. 

*  See  Bergbohm,  Jurisprudents  und  Rechtsphilosophie,  passim.     Se« 
also  pp.  94-96,  ante. 
•See  pp.  141-144,  ante. 


APPENDIX  I 

PII  U8U8  IN  THE  LATER  ROMAN  EMPIRE1 

OF  the  Pii  usus  in  the  later  Roman  Empire  and  their 
legal  position,  we  derive  most  of  our  knowledge  from 
passages  in  the  Code  and  Novels  of  the  Corpus  Juris;  the 
provisions  of  the  Code  touching  the  matter  which  ante- 
date Justinian  are  few. 

Constantino  (A.D.  321),  at  or  soon  after  his  conver- 
sion, issued  a  proclamation  "ad  PopuLum,"  declaring  that 
any  one  might  leave  property  "s&nctissimce  catholicce 
[eccleswe]  venerabilique  concilia  "  2  The  council  seems 
to  have  been  regarded  as  the  corporate  body  of  the  church. 
This  view,  however,  did  not  prevail.  I  am  not  aware  of 
any  other  passage  which  indicates  that  the  Church  Uni- 
versal was  regarded,  in  the  eye  of  the  Civil  Law,  as  a 
juristic  person. 

The  Emperors  Honorius  and  Theodosius  enacted 
(A.D.  409)  that  not  over  nine  hundred  and  fifty  deacons- 
should  be  assigned  to  the  Church  of  Constantinople  and 
that  "nulli  alii  corporatorum"  beyond  that  number  should 
any  immunities  be  granted,3 — thus  apparently  recogniz- 
ing the  deacons  as  members  of  a  corporation.4  Later, 
the  same  Emperors  (A.D.  423)  spoke  of  "divince  domi 

1See  p.  59,  ante. 
2  Cod.  I,  2,  1. 
8  Cod.  I,  2,  4. 
*See  Cod.  I,  2,  14. 

310 


PII  USUS  IN  THE  LATER  ROMAN  EMPIRE  311 

et  venerabiles  ecclesice"  as  charged  with  the  duty  of  re- 
pairing roads  and  bridges.1  The  particular  church  or 
other  ecclesiastical  body  appears  to  have  been  regularly 
considered  as  the  corporate  unit,2  and  (A.D.  434)  the 
Emperors  Theodosius  and  Valentinian  issued  an  edict 
permitting  the  clergy,  or  monks,  or  nuns  to  bequeath 
property  to  their  church  or  monastery,  and  giving  the 
church  or  monastery  its  action  to  recover  the  property,3 
thus  recognizing  it  fully  as  a  juristic  person ;  and  it  was 
enacted  (A.D.  455)  by  the  Emperors  Valentinian  and 
Marcian  that  any  widow  or  deaconess  or  virgin  dedicated 
to  God,  or  "  sanctimonialis  mulier,"  might  leave  property 
by  will,  "ecclesice  vel  martyrio  vel  clerico  vel  monacho  vel 
pauperibus"  4  and  two  days  later,  the  objection  having 
apparently  been  made  that  a  gift  pauperibus  might  be  held 
bad  as  incertis  personis,  it  was  enacted :  "Id  quod  pauper- 
ibtis  testamento  vel  codiciUis  relinquitur,  non  ut  incertis 
personis  relictum,  evanescat,  sed  modis  omnibus  ratum»  fir- 
mumque  consisted"  5 

The  difficulty  of  administering  a  gift  to  an  uncertain 
class  who  could  not  be  considered  as  constituting  a  juristic 
person  seems  to  have  been  first  felt  in  the  case  of  gifts  for 
the  redemption  of  captives.  The  Emperor  Leo  enacted 
(A.D.  468)  6  that  if  a  testator  gave  a  legacy  for  the  re- 
demption of  captives  and  named  a  person  through  whom 
the  redemption  should  be  made,  such  person  should  have 

'Cod.  I,  2,  1. 

'See  Cod.  I,  2,  12. 
8  Cod.  I,  3,  20. 

4  Cod.  I,  2,  13. 

5  "A  legacy  left  to  the  poor  by  a  will  or  codicils  is  not  to  fail  as 
being  left  to  uncertain  persons,  but  is  in  every  way  to  stand  ap- 
proved and  established."    Cod.  I,  3,  24. 

"Cod.  I,  3,  28. 


312          THE  NATURE  AND  SOURCES  OF  THE  LAW 

the  right  to  get  the  legacy;  but  that  if  the  testator  had 
not  named  any  one  to  take  it,  then  the  bishop  should  have 
the  right  to  exact  it  from  the  heirs  and  should  carry  out 
the  intent  of  the  testator  and  render  an  account  to  the  gov- 
ernor of  the  province.  This  "facultas  exigendi"  gave  legal 
personality  to  the  bishop  in  his  official  character.1 

In  the  year  472,  in  the  reign  of  the  Emperors  Leo  and 
Anthemius,  we  find,  for  the  first  time,  mention  of 
xenodochia  and  ptochia,  or  guest  houses  and  almshouses, 
and  of  the  privileges  awarded  to  them.2  And  in  the  same 
year,  all  the  privileges  granted  " orphanotrophio  sive  asce- 
teriis  vel  ecclesiis  aut  ptochiis  sen  xenodochiis  aut  mon- 
asteriis  atque  c&teris  hominibus  etiam,  ac  rebus  juris 
eorum"  were  put  under  the  charge  of  Nico,  a  priest  and 
orphanotrophus,  and  his  successors.3  This  brings  us  down 
to  the  time  of  Justinian. 

There  was  a  great  deal  of  legislation  by  Justinian  on 
matters  concerning  the  Church,  much  of  it  with  reference 
to  the  alienation  of  ecclesiastical  property,  which  was  in 
general  prohibited.  This  legislation  is  contained  both 
in  the  Code  and  in  the  Novels.  The  first  edition  of  the 
Code  was  published  A.D.  529,  and  the  second,  repetitce 
prwlectionis,  A.I>.  534.  The  provisions  of  the  Code  con- 
cerning eleemosynary  institutions  are  contained  mainly 
in  the  second  and  third  chapters  of  the  first  book.  Gifts 
for  ecclesiastical  or  eleemosynary  purposes  are  said  to 
be  super  piis  causis*  efc  etxrejSeZs  xoeias,5  and  besides 
the  objects  that  were  enumerated  in  the  edicts  of  Jus- 

*Cf.  Cod.  I,  3,  48  (49)  ;  Nov.  131,  11. 

'Cod.  I,  3,  32  (33),  7. 

*"To  an  orphanage  or  hermitages  or  churches  or  almshouses  or 
guest  houses  or  monasteries,  or  to  other  persons  [i.e.  slaves]  or 
things  belonging  to  them."  Cod.  I,  3,  34  (35). 

«Cod.  I,  2,  19. 

"Cod.  I,  3,  41    (42),  ls 


PII  U8U8  IN  THE  LATER  ROMAN  EMPIRE  313 

tinian's  predecessors,  ecdesice,  divinoe  domi,  martyria, 
orphanotrophia,  asceteria,  ptochia,  xenodochia,  monasteria, 
we  now  find  also  noscomia,  ptochotrophia*  xenones, 
brephatrophia,  gerontocomia.2 

Where  the  remains  are  so  scanty,  it  is  dangerous  to 
speak  with  certainty,  but  it  seems  as  if  these  various  in- 
stitutions were  corporations  with  members,  like  those  of 
the  Common  Law  and  the  secular  corporations  of  the 
Romans,  and  not  mere  abstract  conceptions,  without  in- 
dividual members,  like  the  modern  German  Stiftungen. 
Thus,  after  enumerating  several  of  these  eleemosynary 
institutions,  Justinian  adds,  "vel  siquid  cdiud  taie  consor- 
tium"; and  later  in  the  same  edict,  he  speaks  of  "domuum 
quoe  piis  consortiis  deputata  sunk,"  3  and  in  another  edict, 
after  speaking  of  gifts  and  legacies,  ecclesiis,  xenonibus, 
etc.,  he  goes  on:  "Sive  Hague  memoratis  religiossimis  lo- 
cis  vel  civitatibus  hereditas  give  legatum  sive  fideicommis- 
sum  fuerit  relictum."  4  And  in  a  law  passed  A.D.  530, 
after  speaking  of  gifts  to  several  kinds  of  eleemosynary 
institutions  which  he  specifies,  he  goes  on :  "  *H 
0wn7jLta<7t  TKTLV  citajecrtv  77  oXcos  owe  a.-jnj'yopevfj.tvois  T&V  e« 
6ovs  rjdpoHTn&uv." 6  And  in  a  new  law,  A.D.  534,  he 
speaks  of  property  granted  in  perpetuity  "TOIS  evaykcriv 
OWLS  fcai  rals  avrtav  <n}<rTa<T€<riv."  6 

We  have  seen  that  it  had  been  declared  in  455  that  a 
gift  to  the  poor  should  not  be  deemed  bad  as  made 

1  "Infirmaries,  almshouses."     Cod.  I,  2,  19. 

*  "Guest  houses,  foundling  hospitals,  homes  for  the  aged."  Cod. 
I,  2,  22. 

•"Or  any  other  such  association,"  "of  the  houses  allotted  to  re- 
ligious associations."  Cod.  I,  2,  22. 

4  "And  so  if  an  inheritance  or  a  legacy  or  a  trust  shall  be  left  to 
renowned  holy  places  or  cities."  Cod.  I,  2,  23.  Cf.  Cod.  I,  2,  19. 

8  "Either  simply  to  any  religious  congregations  or  to  societies  not 
in  any  way  prohibited  by  law."  Cod.  I,  3,  45  (46),  9. 

'"To  the  holy  houses  and  their  congregations."  Cod.  I,  3,  55 
(57),  3. 


314          THE  NATURE  AND  SOURCES  OF  THE  LAW 

incertis  personis,  but  that  nothing  was  done  by  way  of 
creating  a  right  to  have  such  a  gift  enforced.  This  de- 
fect Justinian  cured.  By  an  edict  (A.D.  531),  after  deal- 
ing with  some  special  cases,  he  declared  that  if  "the  poor" 
simply  were  made  heirs,  the  inheritance  should  go  to  the 
xenon  of  the  city — "xenonem  ejus  civitatis  omnimodo 
hereditatem  nancisci" ; l  and  an  even  more  striking  rule 
had  been  established  in  the  preceding  year,  that  if  any  one 
should  make  Christ  his  heir,  the  church  of  the  testator's 
domicil  should  be  the  heir;  and  if  any  archangel  or 
martyr  was  named  as  heir,  his  oratory  should  be  deemed 
the  heir.2 

If  the  heirs  of  a  testator  did  not  carry  out  the  will  of 
the  testator,  for  instance,  in  building  a  church  or  a 
xenodochium,  it  was  made  the  business  of  the  bishop  to 
bring  them  before  the  court  (  dTratreu' )  and  compel  them 
to  perform  the  will  of  the  deceased.3 

The  Novels  add  but  little  to  our  knowledge  of  the  con- 
stitution of  eleemosynary  institutions.  We  find  the  word 
collegium  used  to  indicate  such  a  body ;  4  an  action  is  given 
to  a  church  against  its  ceconomi  or  administrators ;  5  and 
for  certain  transactions  the  consent  is  required,  not  only 
of  the  rulers  of  every  "venerdbilis  domus"  but  also  of 
the  "amplior  pars  in  eis  deservientium."  6 

These  eleemosynary  institutions  were,  therefore,  prob- 
ably regarded  in  the  later  Roman  Empire  as  corporations. 

1  "The  guest  house  of  that  city  shall  surely  obtain  the  inheritance." 
Cod.  I,  3,  48  (49). 

'Cod.  I,  2,  25  (26).     Cf.  Nov.  131,  9. 

•Cod.  I,  3,  45   (46).     Cf.  Nov.  131,  10. 

4  Nov.  7,  passim. 

"Nov.  7. 

•"The  greater  part  of  those  attached  to  their  service."  Nov.  120, 
6  et  7. 


APPENDIX  II 

HEREDITAS  JACENS  » 

THERE  are  few  Common  Law  lawyers  who  have  nibhled 
ever  so  little  in  the  pastures  of  the  Civil  Law  who  have 
not  been  fascinated  with  the  conception  of  the  hereditas 
jacens.  Beside  the  clumsy  machinery  of  our  Law  for 
getting  the  property  which  has  belonged  to  a  deceased 
person  home  to  those  who  are  to  have  the  beneficial  in- 
terest in  it,  the  conception  of  an  entity  which  can  con- 
tinue the  legal  relations  of  the  deceased  towards  persons 
and  things  until  new  relations  of  the  living  are  established 
in  their  place,  seems  one  of  the  most  philosophical  and 
practically  useful  of  legal  conceptions,  to  have  all  of  the 
advantages  and  few  of  the  disadvantages  that  spring  from 
making  an  abstraction  into  a  legal  person.  But  a  slight 
examination  shows  that  the  Civil  Law  is  no  better  off 
than  ours,  and  that  hereditas  jacens  has  but  a  limited 
scope. 

Let  me  first  call  attention  to  what  becomes  of  a  man's 
rights  at  Common  Law  upon  his  death.  There  is  a  great 
difference  between  real  and  personal  property. 

And  first  as  to  land.  If  a  man  dies  intestate,  there 
is  no  interval  in  the  ownership  of  land;  the  heir  is  at 
once  seised  of  the  land,  he  has  seisin  in  law,  he  is  the 

xSee  p.  56,  ante. 
215 


316          THE  NATURE  AND  SOURCES  OF  THE  LAW 

owner.  The  succession  is  not  that  of  a  universal  suc- 
cessor ;  *  the  heir  takes  each  parcel  of  land  as  a  singular 
successor.2  It  is  true  that  until  the  heir  entered  into 
actual  possession  of  the  land,  he  did  not,  at  Common 
Law,  become  a  stock  of  descent,  and  on  his  death  the  estate 
in  the  land  passed  not  to  his  heir,  but  to  the  heir  of  the 
ancestor  last  seised  in  fact,  and  if  a  stranger  entered  upon 
the  land  before  the  heir,  there  was  said  to  be  an  abatement, 
and  not  a  disseisin ;  3  but,  in  general,  the  heir's  rights  and 
remedies  are  the  same  whether  he  has  entered  or  not.4 

The  devisee  of  land  is  also  a  singular  successor.  A 
devisee  need  not  accept  a  devise.  Whether  acceptance 
of  a  devise  is  a  condition  precedent  to  the  seisin  passing 
to  the  devise  is,  perhaps,  not  entirely  clear;  but  even  if 
it  is  necessary,  yet  there  is  no  vacancy  in  the  seisin;  if 
it  is  not  in  the  devisee,  it  is  in  the  heir. 

As  to  personal  property.  Until  the  executor  assented 
or  intermeddled,  or,  in  case  of  intestacy,  until  the  ad- 
ministrator was  appointed,  the  ordinary  (i.e.  the  bishop) 
in  England  succeeded  to  the  rights  of  the  deceased,5  and 
now,  by  statute,  the  Judge  of  the  Probate  Court  takes 
what  the  ordinary  did  formerly  (21  &  22  Viet.  c.  95, 

1  One  who  acquires  all  the  rights  and  duties  of  the  person  to  whom 
he  succeeds. 

"One  who  takes  only  particular  property,  and  is  not  liable  for  the 
former  owner's  debts. 

8  2  Bl.  Com.  209. 

4  There  seems  to  be  a  real  vacancy  in  the  possession,  on  the  death 
of  an  individual  who  is  a  corporation  sole  (see  p.  57,  ante),  until  the 
successor  is  appointed  ( Litt.  §  647 )  ;  and  so,  also,  upon  the  death  of 
a  tenant  pur  aut&r  vie,  until  the  general  occupant  enters.  (At  com- 
mon law,  when  a  person,  who  held  land  during  the  life  of  another 
person,  died  during  the  life  of  that  other  person,  the  remainder  of 
the  term  was  enjoyed  by  whoever  first  took  possession  of  the  land. 
He  was  called  the  general  occupant.  See  2  Bl.  Com.  258.) 

•2  Bl.  Com.  494;  2  Pollock  &  Maitland,  Hist,  of  Eng.  (2d  ed.)  356 
et  seq. 


HEREDITA8  JACEN8  317 

§  19).  The  question  seems  never  to  have  been  discussed 
in  the  United  States. 

A  difficulty  under  which  we  lie  at  the  Common  Law 
from  not  having  a  legal  entity  corresponding  to  the  popular 
idea  of  the  "estate"  of  a  deceased  person  appears  after 
the  legal  title  has  become  vested  in  the  executor  or  ad- 
ministrator, from  the  circumstance  that  there  is  no  way 
in  which  the  "estate"  can  be  bound,  otherwise  than  by 
a  mortgage  or  pledge  of  the  assets.  For  instance,  suppose 
it  is  desirable  that  goods  should  be  cared  for,  there  is 
no  way  of  binding  the  estate  to  pay  for  it,  the  suit  must 
be  against  the  executor.  It  is  true  the  executor  has  a 
right  to  compensate  himself  out  of  the  assets  of  the  estate, 
and  that  the  warehouse-keeper  can  be  subrogated  to  the 
right  of  the  executor,  but  if  the  balance  of  the  accounts 
between  the  estate  and  the  executor  is  against  the  latter, 
there  is  nothing  to  which  the  creditor  can  be  subrogated. 

Perhaps  when  it  came  to  be  applied,  it  would  be  found 
that  the  idea  of  an  abstract  entity  in  which  resided  the 
rights  and  obligations  of  the  deceased,  and  of  which  the 
executor  was  the  agent,  however  attractive  in  theory,  might 
not  work  well  in  practice.  Certain  it  is  that  the  Koman 
Law  did  not  rise  to  such  a  conception. 

If  the  Law  of  Succession  is  one  of  the  least  admirable 
parts  of  our  Jurisprudence,  it  is  also  not  one  of  those  parts 
of  the  Roman  Law  which  are  entitled  to  much  praise.  It 
was  not  till  the  time  of  Justinian,  long  after  the  period 
of  the  classical  jurists,  that  an  heir  could  accept  an 
inheritance  without  making  himself  personally  liable  for 
all  the  debts  of  the  deceased.  As  soon  as  he  accepted 
the  inheritance,  he  immediately  owned  the  property,  he 
was  the  one  who  sued  to  enforce  all  claims  that  the 


318          THE  NATURE  AND  SOURCES  OF  THE  LAW 

deceased  had,  and  every  claim  of  a  creditor  or  legatee 
was  a  claim  against  him  personally,  which  he  had  to 
satisfy  in  the  same  way  as  a  debt  which  he  had  himself 
incurred.  And  yet  the  settlement  of  the  estate  could  be 
worked  out  only  through  the  instrumentality  of  the  heir. 

In  the  interval,  as  I  have  said,  between  the  death  of 
the  ancestor  and  the  moment  when  the  heir  accepted  the 
inheritance,  the  Romans  placed  the  hereditas  jacens, — 
an  expression,  by  the  way,  which  does  not  occur  in  the 
Corpus  Juris,  but  is  taken  from  the  language  of  D. 
XVIII,  24,  13,  5,  "puta  hereditas  jacebat"  * 

Whether  the  hereditas  jacens  is  or  is  not  a  juristic 
person,  yet  in  the  sense  common  among  the  Romans,  of 
persona  as  character,  office,  function,  the  hereditas  jacens 
has  a  persona.  Whether  it  represents  the  persona  of  the 
ancestor  or  of  the  heir,  has  been  disputed.  If  it  is  the 
latter,  then  the  title  of  the  heir  relates  back  to  the  death 
of  the  ancestor,  and  the  property  passes  immediately  from 
the  ancestor  to  the  heir.  If,  on  the  other  hand,  the  hered- 
itas continues  the  person  of  the  ancestor,  then  the  suc- 
cession passes,  not  directly  from  the  ancestor  to  the  heir, 
but  through  the  hereditas.  According  to  Iher ing's  view,2 
which  I  am  inclined  to  accept,  the  original  doctrine  was 
that  the  title  of  the  heir  related  back  to  the  death  of  the 
ancestor,  but  subsequently  the  theory  that  the  hereditas 
jacens  represented  the  ancestor  was  adopted  and  prevailed, 
some  survivals  of  the  older  view  remaining  to  mar  the 
symmetry  of  his  new  doctrine. 

To  come  back  to  the  question  whether  the  hereditas 
jacens  is  a  juristic  person,  the  subject  of  rights  and 
duties.  It  has  no  organs  through  which  it  can  express 

*  "Suppose,  the  inheritance  lies  (vacant)" 
•Abhacdlungen  aus  d.  rom.  R.  p.  149  et  seq. 


HEREDITA8  JACENS  319 

volition;  no  action  seems  to  have  been  given  to  it;  nor 
does  it  appear  to  have  been  the  subject  of  legal  duties, 
to  have  ever  been  recognized  as  bound  to  do  or  forbear, 
or  as  an  object  of  compulsion.  By  a  missio  in  bona 
(delivery  of  possession  of  the  goods),  the  goods  of  a  de- 
ceased person  were  sold  and  the  purchaser  became  the 
universal  successor  of  the  deceased,  but  the  hereditas 
jacens  never  seems  to  have  been  a  party  to  the  proceeding, 
nor  to  have  been  called  upon  for  any  action.  Savigny  l 
and  Sohm  2  agree  in  denying  that  the  hereditas  jacens 
is  a  juristic  person.  But  it  must  be  admitted  that  it  is 
often  called  so.  As  by  Florentinus:  "Hereditas  personce 
vice  fungitw,  sicut  municipium  et  decuria  et  societas";  3 
and  frequently  by  modern  civilians ;  4  and  although  it 
could  not  sue  or  be  sued,  it  must,  I  suppose,  have  had  a 
right  to  police  protection  like  that  awarded  to  the  property 
of  new-born  children  and  infants,5  and  so  must  be  con- 
sidered as  having  some  legal  rights  and  as  being,  therefore, 
though  to  a  very  limited  extent,  a  juristic  person. 

In  Scotland,  which  derives  its  Jurisprudence  from  the 
Roman  Law,  the  hereditas  jacens,  besides  having  the  right 
to  police  protection,  of  which  I  have  just  spoken,  seems 
to  be  the  subject  of  a  legal  duty,  for,  in  that  country, 
when  the  heir  renounces,  a  decreet  issues  at  the  suit  of 
a  creditor  of  the  deceased,  cognitionis  causa,  contra  here- 
ditatem  jacentem  et  bona  immobilia  and  other  goods  and 
gear  appertaining  to  the  defunct.6 

12  Heut.  rom.  Recht,  §  102. 

2Inst.  §  96. 

3  "The  inheritance  takes  the  place  of  a  person,  just  like  a  munici- 
pality or  a  board  or  an  association."  D.  XLVI,  1,  22. 

'See  3  Windscheid,  Pand.  §  531. 

'See  p.  22,  ante. 

*  "To  make  inquest,  against  the  vacant  inheritance  and  the  landed 
property."  1  Erskine,  Inst.  Book  II,  tit.  12,  §§  47  et  seq.;  Dallas, 
Styles  (ed.  1697)  214, 


ALTHOUGH  the  claim  of  the  Emperors  of  Germany  to 
continue  the  succession  of  the  Roman  Emperors  naturally 
made  them  think  and  speak  of  the  Roman  Law  as  their 
law ;  2  although,  in  the  second  half  of  the  twelfth  century, 
Frederick  Barbarossa,  in  deciding  disputes  in  Germany, 
relied  on  rules  of  the  Roman  Law;  3  and  although,  in 
course  of  time,  there  was  formed  a  conception  of  imperial 
law  (which,  however,  embraced  not  only  the  Corpus  Juris 
of  Justinian,  but  also  the  laws  of  the  German  Empire)  ; 
yet  very  much  was  wanting  to  the  practical  operation  of 
these  views,  and  throughout  the  whole  of  the  Middle  Ages 
there  are  but  rare  traces  in  Germany  of  the  application 
of  Roman  legal  doctrines  in  life  and  in  the  courts. 

About  the  middle  of  the  fifteenth  century,  however, 

1  See  p.  93,  ante. 

2  Thus,  at  the  beginning  of  the  eleventh  century,  Otto  III,  during 
his   stay  at  Rome,   provided  thus  for  the   investiture  of   a  judge: 
"Tune  dioat  imperator  judici:     'Cave  ne  aliqua  occasione  Ju&tiniani 
sanotissimi   antecessoris  nostri   legem   subvertas.'      Tune  imperator 
.  .  .  det  ei  in  manum  librum  codioum,  et  dicat:     'Secundum  hunc 
librum  judioa  Romam   et  Letminam  orbemque  universum."     "Then 
let  the  emperor  say  to  the  judge:     'Take  care  lest  on  any  occasion 
you  subvert  the  law  of  Justinian  our  most  holy  predecessor.'   Then  let 
the  emperor  .  .  .  give  into  his  hand  the  book  of  the  codes  and  say: 
'According  to  this  book  judge  Rome,  and  the  Leonine  city,  and  the 
whole  world.'"     (The  Leonine  city  was  a  part  of  Rome  fortified  by 
Pope  Leo  IV.)     Cited  1  Stobbe,  Geschichte  der  deutschen  Rechtsquel- 
len,  §  59,  p.  613. 

8  See  1  Stobbe,  pp.  616-618. 

320 


RECEPTION  OF  THE  ROMAN  LAW  321 

the  German  universities  began  to  teach  the  Roman  Law, 
at  first  in  a  sufficiently  stupid  manner,  but  afterwards, 
following  the  lead  of  Italy,  more  intelligently ;  and  in  the 
great  and,  indeed,  extravagant  admiration  of  learning, 
characteristic  of  the  time,  men  who  had  been  educated  at 
German  or  foreign  universities,  and  who  were  imbued  with 
the  doctrines  of  the  Civil  Law,  came  by  rapid  degrees  to 
acquire  Court  favor,  power  and  judicial  position,  and  in- 
troduced into  the  practice  of  the  tribunals  elements  of  an 
entirely  novel  and  foreign  character. 

There  is  much  to  explain  this.  The  German  people 
were  split  up  into  a  great  number  of  States,  many  of 
them  very  petty,  each  with  its  own  separate  system  of 
Law.  Undoubtedly  there  was  much  unity  of  spirit  in 
those  systems,  but  this  unity  has  been  rather  a  discovery 
of  modern  times  than  what  was  then  obvious.  The  philolo- 
gist can  trace  the  close  grammatical  connection  between 
the  languages  of  two  countries,  and  yet  the  inhabitants  of 
one  of  the  countries  may  be  totally  unable  to  understand 
those  of  the  other.  The  like  is  true  as  to  the  Law.  And 
further,  in  the  rapid  growth  from  barbarism  to  civiliza- 
tion, it  was  natural  and  laudable  that  aid  should  be  sought 
from  the  only  system  of  law  of  which  anything  was  known 
that  had  prevailed  among  a  civilized  people. 

But,  none  the  less,  the  introduction  of  the  Roman  Law, 
instead  of  carrying  out  the  convictions  of  the  people,  was 
extremely  distasteful  to  them.  To  quote  from  Stobbe: 
"This  law  was  and  continued  to  be  a  foreign  law;  the 
people  did  not  know  or  understand  it;  it  was  centuries 
before  the  want  of  harmony  which  necessarily  resulted 
from  the  mixture  of  heterogeneous  elements  was  overcome. 
With  nothing  less  than  violence  was  the  foreign  law 


322          THE  NATURE  AND  SOURCES  OF  THE  LAW 

brought  in.  While  in  the  court  and  city  tribunals  it  ob- 
tained an  almost  unlimited  control,  customary  law  and 
ancient  usages  held  their  own  for  centuries  yet  in  the 
peasant's  courts.  .  .  .  By  degrees  only  was  the  foreign 
law  assimiliated  to  the  domestic,  and  not  even  to-day  have 
many  legal  principles,  taken  over  from  foreign  law,  be- 
come popular,  that  is,  corresponding  to  a  general  legal 
feeling.  .  .  .  The  jurists  disputed  over  the  interpretation 
of  this  or  that  passage,  and  over  the  decision  of  contro- 
versies; the  people,  without  exception,  had  no  interest 
and  no  understanding  for  these  moot  questions  and  gave 
up  all  influence  on  the  definition  and  development  of  its 
law."  * 

Stobbe  gives  many  instances  of  the  dislike,  and  indeed 
hatred,  of  the  Roman  Law  and  its  professors.  As  an  in- 
stance, here  is  one  more  moderate  in  its  tone  than  several 
others.  "Cum  jus  mumcipale  servandum  sit  et  antiques 
consuetudines  pro  legibus  habendce  sink,  fit,  ut  muUa  his 
contraria  fiant,  unde  deceptiones,  errores  et  turbo? 
oriuntur.  Illi  enim  juris  professores  nostrum  morem 
ignorant,  nee  etiam  si  sciant,  iUis  nostris  consuetudvnibus 
quicquam  tribuere  volunt."  z 

Nothing  could  be  more  unlike  what  is  styled  customary 
law  than  the  Roman  Law  as  it  was  received  by  the  jurists. 
Customary  law  so  called  is  built  up  of  practical  rules 
taught  by  experience,  but  the  Roman  Law  was  accepted 

*2  Stobbe,  §  65,  pp.  137,  139. 

*  "Although  the  local  law  should  be  observed,  and  the  ancient  cus- 
toms should  be  considered  as  taking  the  place  of  written  statutes, 
it  comes  to  pass  that  many  things  are  done  contrary  to  them,  whence 
frauds,  mistakes  and  disturbances  arise.  For  those  professors  of  law 
are  ignorant  of  our  usages;  and  even  if  they  know  them,  they  will 
not  make  any  concessions  to  those  customs  of  ours."  2  Stobbe,  §  64, 
p.  95. 


RECEPTION  OF  THE  ROMAN  LAW  323 

as  a  whole  by  persons  who  were  utterly  ignorant  of  many 
things,  if  not  of  most  things,  that  it  contained.  It  was 
accepted  as  a  whole  by  men  who  had  yet  to  learn  the 
rules  which  it  comprised,  while  in  customary  law  the 
rules  come  first  and  the  system  to  unite  them  comes  after- 
wards. 

The  view  of  the  jurists  themselves  was  not  at  all  that 
they  were  the  representatives  of  the  people,  to  give  effect 
to  its  legal  customs  by  aid  of  their  superior  intelligence 
and  training;  on  the  contrary  they  regarded  the  Roman 
Law  as  the  only  true  Law  and  the  customs  as  irregulari- 
ties to  be  regretted.  To  quote  Stobbe  once  more:  "In 
many  writings  and  sayings  they  [the  jurists]  express 
the  liveliest  joy  that  they  possess  the  Leges,  and  that  by 
them,  with  a  bound,  they  have  risen  from  the  deepest  bar- 
barism to  civilization.  But  no  one  ever  thought  to  ask 
the  question  how  they  got  the  Leges  and  whether  they 
had  a  right  to  apply  them.  ...  In  consequence  of  their 
measureless  veneration  for  the  foreign  law,  the  jurists  had 
utterly  departed  from  the  idea  that  the  domestic  German 
Law,  which  was  expressed  in  general  and  particular  cus- 
toms and  statutes,  was  the  original  law,  and  that  the 
Roman  Law  came  to  it  in  later  times  as  an  auxiliary  law ; 
they  had  no  feeling  of  the  equal  importance  of  the  German 
Law.  On  the  contrary,  they  argued  as  if  the  Roman 
Law,  which  was  certainly  older  but  which  only  at  a  late 
period  had  had  any  practical  value  for  Germany,  was 
the  original,  which,  through  particular  German  doctrines, 
had  been  modified  or  put  out  of  use.  Instead  of  saying 
that  a  Roman  provision  stood  in  contradiction  with  the 
German  legal  consciousness,  so  that  its  application  was  ex- 
cluded through  German  rules  of  Law,  they  completely 


324          THE  NATURE  AND  SOURCES  OF  THE  LAW 

reversed  the  relation;  it  was  the  rule  of  the  foreign  law 
which,  through  a  German  custom  or  a  German  statute, 
had  fallen  into  disuse.  They  spoke  as  if,  before  the  re- 
ception of  the  Roman  Law,  there  had  been  no  law  at  all  in 
Germany,  and  as  if  everything  of  German  Law  which  pre- 
vailed in  practice  and  was  not  abandoned  had  to  be  treated 
as  a  mere  irregularity.  A  consequence  of  these  views  was 
that  they  despised  the  unwritten  law,  the  German  customs, 
and  regarded  them,  so  far  as  they  did  not  agree  with  the 
Roman  Law,  as  evil  customs."  * 

'Stobbe,  §  65,  pp.  112,  115-117. 


APPENDIX  IV 

AUTONOMY 

IT  is  said  in  the  text 1  that  the  Germans  do  not  at- 
tribute autonomy  to  ordinary  private  corporations;  but 
there  is  a  class  of  corporations,  offentlichrechtlichen  Cor- 
porationen  (public  law  corporations),  to  which  autonomy 
has  been  attributed.  Guilds  (Zunfte)  and  the  Universi- 
ties belong  to  this  class.2  The  power  of  independent 
self-government  which  bodies  of  this  class  possessed  when 
they  were  originally  formed  and  the  slenderness  of  the 
tie  between  them  and  the  State  appears  to  have  been  the 
cause  why  they  have  been  considered  as  having  autonomy.3 
Such  corporations,  if  now  formed  for  the  first  time,  would 
probably  be  relegated  to  the  class  of  private  corporations 
and  all  autonomy  denied  them.  It  is  difficult  to  see  at 
the  present  day  how  the  rules  made  by  such  a  body  differ 
from  the  by-laws  of  the  latest  telephone  company,  and 
why  one  should  have  autonomy  and  the  other  not.4 

The  question  which  has  been  most  discussed  is  whether 
the  higher  German  nobility  have  autonomy;  that  is, 
whether  the  power  given  to  the  heads  of  the  families  of 

*Pp.  158-159,  ante. 

2 1  Stobbe,  Handb.  d.  deutsch.  Privatr.  §  20,  pp.  124,  125. 
'See  Schroder,  Lehrb.  d.  deutsch.  Kechtsgeschichte  (6th  ed.)   §  51, 
pp.  703-705. 

4  See  pp.  107-109.  ante. 

325 


326           THE  NATURE  AND  SOURCES  OF  THE  LAW 

the  higher  nobility,  sometimes  with,  sometimes  without, 
the  consent  of  the  other  members  of  the  family,  to  settle 
the  order  of  devolution  of  the  family  property,  is  to  be 
considered  as  the  offspring  of  their  autonomy,  or  whether 
it  is  merely  an  instance  of  authority  given  by  the  State 
to  a  certain  class  to  deal  with  property  in  a  certain  way. ' 

Gerber  has  denied  the  existence  of  autonomy  altogether, 
and  although  his  remarks  are  aimed  principally  at  the 
claim  to  it  by  the  higher  nobility,  he  seems  to  deny  itf 
also  to  any  corporations.  Most  of  the  writers,  however, 
allow  autonomy  to  the  higher  nobility,  but  differ  greatly 
among  themselves  whether  a  family  of  that  nobility  is  a 
corporation,  some  thinking  autonomy  to  be  a  privilege 
which  can  be  given  only  to  a  corporation,  others  denying 
this.  Gerber,  although  apparently  without  much  follow- 
ing in  Germany,  seems  to  a  common-law  lawyer  to  have 
the  best  of  the  argument. 

The  modern  German  writers,  both  those  who  admit 
autonomy  to  a  greater  or  less  extent,  and  those  who  deny 
it  altogether,  agree  upon  the  test  to  be  adopted.  "The 
essential  mark  of  the  autonomic  institution"  (Satzung) 
is  ''that  it  has  not  the  application  of  the  Law,  but  the 
making  of  the  Law  for  its  object;  that  it  establishes  not 
legal  relations  but  legal  principles,  and  is  not  a  legal 
transaction  but  an  institution."  1  But  this  does  not  help 
us  forward  much. 

The  fact  is  that  in  early  times  there  were  bodies  within 
the  territorial  limits  of  a  State  which,  through  their 
tribunals,  exercised  compulsion  over  persons,  and  yet 
these  bodies  were  not  the  creatures  of  the  State,  and  did 
not  owe  their  authority  to  it.  In  the  course  of  time, 
1 1  Holtzendorff,  Rechtslex.  Autonomie. 


AUTONOMY  327 

as  civilization  has  progressed,  these  bodies  have  lost  their 
power  of  compulsion,  except  as  they  derive  it  from  the 
State.  If  autonomy  still  exists  in  the  higher  German 
nobility,  it  is  only  a  survival  of  early  barbarism. 

Neither  the  Roman  Law,  nor  the  English  Common  Law, 
nor,  so  far  as  I  am  aware,  the  Law  of  any  country  on 
the  continent  of  Europe,  except  Germany,  knows  any- 
thing of  autonomy.1 

There  does,  however,  seem  to  be  one  case  of  real  auton- 
omy, though  I  am  not  aware  that  the  word  has  been  used 
in  connection  with  it,  a  case  where  general  rules  in  an  ex- 
press form  are  sources  of  Law  to  the  courts  of  an  organiza- 
tion, although  they  are  made  by  the  legislative  department 
of  another  organization.  I  refer  to  a  church  which,  while 
not  being  an  organ  of  the  State,  is  yet  recognized  by  the 
State  as  the  only  true  Church.  This,  of  course,  is  not 
so  in  the  case  of  a  State  Church  like  the  English,  whose 
courts  are  His  Majesty's  Ecclesiastical  Courts,  which  are 
at  the  mercy  of  Parliament,  and  which  Parliament  does 
not  hesitate  to  alter  in  the  most  thoroughgoing  manner; 
witness  the  establishment  of  the  Judicial  Committee  of 
the  Privy  Council  as  the  supreme  ecclesiastical  tribunal.2 

1  If  autonomic  Law  has  not  been  reduced  to  writing,  it  is  usual  to 
speak  of  observance,  not  of  autonomy. 

On  autonomy  see  Gerber,  Ueber  den  Begriff  der  Autonomie  (1854) 
37  Arch,  fur  d.  civ.  Pr.  35-62;  Nachtragliche  Erorterungen  (1859)  3 
Jahrb.  fiir  Dogm.,  411-448  (these  two  articles  are  also  to  be  found 
in  Gerber,  Juristische  Abhandlungen,  36,  64)  ;  Maurer,  Ueber  den 
Begriff  der  Autonomie  (1855)  2  Kritische  Ueber schau,  229-269; 
Jolly,  Das  Hausgesetz  der  Grafen  von  Giech  (1859)  6  Kritische 
Ueberschau,  330-384;  1  Stobbe,  Handb.  d.  deutsch.  Privatr.  §§  19, 
20,  pp.  129-143;  1  Winscheid,  Pand.  §  19;  Holtzendorff,  Encyclopadie 
(5th  ed.)  570.  On  the  question  whether  a  family  of  the  upper  Ger- 
man nobility  is  a  juristic  person,  see  Mejer,  5  Griinhut,  Zeitschr. 
229-269;  in  answer  to  Mejer,  Beseler,  76.  540-556;  and  Gierke,  /&. 
557-599;  and  Mejer's  reply,  6  Grunhut,  Zeitschr.  201-210. 

'See  p.  109,  note,  ante. 


328          THE  NATURE  AND  SOURCES  OF  THE  LAW 

An  instance  of  what  I  have  in  mind  is  the  Catholic 
Church  in  Spain,1  or  the  Mohammedan  Church  or  Syna- 
gogue, or  whatever  be  the  proper  designation  for  the 
body  of  Moslem  believers,  in  Turkey.2  The  canons  ai 
such  a  body  are  binding  on  the  State  courts,  and  yet  the 
ecclesiastical  council  or  the  assembly  of  the  Ulema  is  not 
an  organ  of  the  State.  We  may  say  of  these  rules,  as 
Austin  says  of  all  Law,  that  inasmuch  as  the  State  could, 
if  it  would,  forbid  its  courts  to  follow  them,  they  must 
be  considered  as  established  by  the  State,  but  this  mode 
of  expression  does  not  correspond  to  what  is  the  opinion 
of  the  judges  of  the  State,  or  of  those  to  whom  it  admin- 
isters justice.3 

*E.g.  Spanish  Civil  Code,  Art.  42,  75,  80.  I  Lehr,  Droit  Civil 
Espagnol,  54  et  seq.  See  also  Parapano  v.  Happaz,  [  1894]  A.  C.  165. 

2  In  India,  the  British  courts  recognize  the  Mohammedan  religious 
law  as  binding  on  Mohammedan  subjects,  in  certain  matters.  Sir 
R.  K.  Wilson,  Anglo-Muhammedan  Law  (4th  ed.)  pp.  3,  83.  It 
seems,  however,  that  there  exists  nowhere  within  the  Mohammedan 
Church  any  power  to  change  or  add  to  that  law  by  legislation.  76. 
19,  23. 

'See  p.  85,  ante. 


APPENDIX  V 

DESUETUDE  OF  STATUTES  IN  THE  UNITED  STATES » 

South  Carolina.  In  South  Carolina,  as  is  said  in  the 
text,2  certain  Acts  of  the  English  Parliament  were  ree'n- 
acted  (1712)  in  terms  and  made  expressly  statutes  of 
the  Province ;  among  these  was  the  St.  of  4  &  5  Ph.  &  M. 
c.  8,  for  the  Punishment  of  such  as  shall  take  away  maid- 
ens within  the  age  of  sixteen  years.  In  1802  an  indict- 
ment under  this  statute  was  sustained.  The  reporter  of 
the  case  remarks  that  this  was  the  first  conviction  in  South 
Carolina  under  the  statute,  and  adds:  "It  may  not  be 
amiss  here  to  observe  that  it  does  not  follow  that  because 
a  statute  has  been  a  long  time  dormant,  it  is,  therefore,  to 
be  considered  as  obsolete."  3 

In  1818,  the  Constitutional  Court  of  South  Carolina 
held  that  a  statute  of  1706,  giving  a  qui  tarn  action  * 
against  a  magistrate,  being  a  layman,  for  presuming  to 
marry  any  persons,  was  not  in  force.  The  court  said 
that  the  statute  was  intended  as  one  of  the  means  of  es- 
tablishing the  Episcopal  Church,  "but  since  the  establish- 

1  P.  197,  ante. 

*P.  197,  ante. 

'State  v.  Pindlay,  2  Bay,  418.  See  also  State  v.  O'Bannon,  1  Bail 
144;  State  v.  Tidwell,  5  Strob.  1. 

*  Qui  tarn  actions  are  instituted  by  a  person  under  a  statute  which 
imposes  a  penalty  and  gives  a  share  to  the  informer,  "qui  tarn,  pro 
domino  rege  quaan,  pro  se  ipso  sequitwr"  i.e.,  "sues  as  well  for  the 
king  as  for  himself." 

329 


330          THE  NATURE  AND  SOURCES  OF  THE  LAW 

ment  of  our  free  Constitution,  the  Act  is  totally  inap- 
plicable to  our  change  and  situation,  and  must,  therefore, 
be  considered  as  obsolete."  l  This  would  seem  to  have 
been  a  case  of  repeal  by  implication  rather  than  of  abroga- 
tion by  desuetude,  but  Chancellor  Wardlaw  2  spoke  of  it 
as  "the  only  instance  in  our  judicial  history,  in  which 
courts  have  ventured  to  declare  an  Act  of  the  Legislature 
inoperative  from  mere  non  user" 

All  of  the  statutes  passed  by  the  Province  of  South 
Carolina  before  1694  are  said  3  to  have  been  regarded  by 
Judge  Grimke,  who  compiled  the  Laws  of  South  Carolina 
in  1790,  as  not  in  force.4  On  what  this  theory  was 
based  I  do  not  know.  It  was  adopted  by  the  Court  of 
Appeals,  in  reference  to  an  Act  passed  in  1691  providing 
that  any  person  guilty  of  "the  odious  and  loathsome  sin 
of  drunkenness"  might  be  punished  inter  alia  by  sitting 
in  the  stocks.  The  court  say,  "We  would  hesitate,  even 
with  some  authority  to  sustain  us,  before  we  declared  an 
Act  found  on  our  statute  book  obsolete  from  desuetude. 
But  when  that  declaration  has  been  made  more  than  a 
century  by  an  eminent  jurist  and  the  earliest  compiler  of 
our  statute  law,  we  may  safely  adopt  his  conclusion,  espe- 
cially in  reference  to  the  provisions  of  an  Act  so  inap- 
plicable at  the  present  day." 

Pennsylvania,.  In  two  cases  in  1805  5  it  was  held  that 
no  statute  can  be  repealed  by  non  user.  But  in  1824,  in 
a  case  6  in  which  it  was  held  that  in  Pennsylvania  a  com- 

1  Watson  v.  Blaylock,  2  Mill,  351. 
*Canady  v.  George,  6  Rich.  Eq.  103,  106  (1853). 
•O'Hanlon  v.  Myers,  10  Rich.  128,  131   (1856). 
*But  see  2  Cooper,  Sts.  of  So.  Car.,  p.  1. 

*  Respublica  v.  Commissioners  of  Philadelphia,  4  Ycates,  181,  183; 
and  Glanoey  v.  Jones,  Id.  212,  215. 

6  James  v.  Commonwealth,   12  S.  &  R.  220,  228. 


DESUETUDE  OF  STATUTES  IN  THE  UNITED  STATES  331 

mon  scold  could  not  be  punished  by  being  "placed  in  a 
certain  engine  of  correction,  called  a  cucking  or  ducking 
stool,"  Duncan,  J.,  said :  "As  to  the  abrogation  of  statutes 
by  fnon  user,'  there  may  rest  some  doubt;  for  myself,  I 
own  my  opinion  is,  that  enon  user'  may  be  such  as  to 
render  them  obsolete,  when  their  objects  vanish  or  their 
reason  ceases." 

In  1826  l  the  court  refused  to  declare  obsolete  a  statute 
passed  in  1722.  Tilghman,  C.  J.,  said:  "It  must  be 
a  very  strong  case,  to  justify  the  court  in  deciding  that 
an  act  standing  in  the  statue  book,  unrepealed,  is  obso- 
lete and  invalid.  I  will  not  say  that  such  a  case  may 
not  exist — where  there  has  been  a  non  user  for  a  great 
number  of  years — where,  from  a  change  of  times  and 
manners,  an  ancient  sleeping  statute  would  do  great  mis- 
chief, if  suddenly  brought  into  action — where  a  long 
practice,  inconsistent  with  it,  has  prevailed,  and  especially 
where,  from  other  and  later  statutes,  it  might  fairly  be 
inferred  that,  in  the  apprehension  of  the  legislature,  the 
old  one  was  not  in  force.  But  this  is  not  the  case  with 
the  act  of  the  year  1722.  Its  provisions  are  not  unsuited 
to  modern  times." 

In  1858  2  it  was  sought  to  enforce  a  statute  of  1819 
limiting  auditors'  fees  to  $2  per  diem.  Woodward,  J., 
delivering  the  opinion  of  the  Supreme  Court,  said :  "For 
many  years  this  Act  of  Assembly  was  lost  sight  of — was 
omitted  from  our  digests — and  would  seem  to  have  been 
overlooked  by  this  court  in  Baldwins  Estate,  4  Barr,  24-8, 
and  perhaps  in  other  cases.  It  is  said,  in  view  of  these 
circumstances,  that  the  Act  is  obsolete  or  repealed  by  non 

1  Wright  v.  Crane,  13  S.  &  R.  447,  452. 
*  Porter '«  Appeals,  30  Pa.  496,  498,  499. 


332          THE  NATURE  AND  SOURCES  OF  THE  LAW 

user.  On  the  other  hand  it  is  maintained  that  an  Act  of 
Assembly  cannot  be  repealed  by  non  user.  Though  I  do 
not  think  this  Act  is  repealed  by  non  user,  I  cannot  assent 
to  the  doctrine  that  the  usages  and  customs  of  an  advanc- 
ing people  are  incapable  of  displacing  an  Act  of  Assembly 
that  has  become  unfitted  for  modern  use."  The  learned 
Judge  then  quoted  Chief  Justice  Tilghman's  language 
given  above,  and  afterwards  continued :  "The  notion  that 
statutes  are  not  repealable  by  non  user  is  founded  on  two 
cases  of  not  very  high  authority,  4  Yeates,  181,  212,1  both 
of  which  depend  on  an  obiter  dictum  in  White  v.  Boot, 

2  T.R.  275,  a  case  that  was  overruled  in  Leigh  v.  Kent, 

3  T.R.  364.     A  proposition  no  better  supported  cannot 
prevail  against  the  clear  reasoning  of  Chief  Justice  Tilgh- 
man  in  the  case  already  cited  from  13  S.  &  R. ;  but  we 
quite  agree  with  him,  that  it  must  be  a  very  strong  case 
in  which  we  would  set  aside  a  statute  on  that  ground, 
and  we  do  not  think  this  is  such  a  case."    The  court,  how- 
ever, came  to  the  conclusion  that  although  the  Act  of 
1819  was  in  force  it  did  not  apply  to  the  case  before  it. 

In  1882  2  the  court  said  of  a  statute  of  1834:  "So 
the  law  is  written,  and  neither  the  overseers  of  the  poor 
nor  the  courts  can  treat  it  as  obsolete" ;  and  in  1884  3 
a  statute  of  1721  forbidding  any  one  to  sell  fireworks  in 
Philadelphia  "without  the  Governor's  special  license" 
was  held  to  be  in  force.  The  court  say:  "It  was  long 
ago  settled  that  an  Act  of  Parliament  cannot  be  repealed 
by  non  user.  That  this  is  also  the  rule  in  this  State  ac- 
cords with  reason  and  the  absence  of  authority  to  the 

1  Cited  p.  330,  ante. 

•Kitchen  v.  Smith,  101  Pa.  452,  456,  457. 

'Homer  v.  Commonwealth,  106  Pa.  221,  226. 


DESUETUDE  OF  STATUTES  IN  THE  UNITED  STATES  333 

contrary.  The  settled  rule  is,  that  a  statute  can  be  re- 
pealed only  by  express  provision  of  a  subsequent  law,  or 
by  necessary  implication."  * 

Maryland.  In  1829  2  Bland,  C.,  after  referring  to 
cases  in  England,  where  it  was  supposed  that  the  doctrine 
of  desuetude  had  been  applied,  and  saying,  "Our  own 
act  [1747,  c.  3,  §  10],  which  positively  prohibits  clerks 
and  registers  from  suffering  the  papers  and  records  to 
be  taken  out  of  their  offices,  appears  to  have  been  so  long 
and  so  generally  disregarded  as  to  have  fallen  into  ob- 
livion," goes  on  thus:  "These  precedents  would  seem  to 
sanction  the  position  that  a  positive  legislative  enactment 
may  be  virtually  repealed  by  a  long,  general,  and  unin- 
terrupted course  of  practice.  But  they  are  precedents 
which  I  should  feel  a  great  repugnance  to  adopt  and 
enlarge  upon.  .  .  .  There  can  be  no  difference  between 
the  power  to  declare  an  act  of  Assembly  obsolete,  and 
the  power  to  enact  a  new  law.  The  power  to  repeal  and  to 
enact  are  of  the  same  nature.  I  shall  therefore  always 
consider  an  express  provision  of  a  constitutional  Act  of 
Assembly  as  an  authority  superior  to  any  usage  or  ad- 
judged case  whatever."  3 

Iowa.  The  Supreme  Court  of  Iowa  in  1887  4  held 
that  a  provision  in  the  Code  of  1851,  authorizing  the  pro- 
ceeding against  a  distillery  as  a  nuisance,  was  not  to  be 
considered  repealed  by  non  user,  because  no  action  had 
ever  been  taken  under  it,  and,  referring  to  an  earlier  case 
in  Iowa,5  which  had  been  cited  in  support  of  the  doctrine 

1  See  also  Heidenwag  v.  Philadelphia,  168  Pa.  72. 

*  Snowden  v.  Snowden,   1  Bland,  550. 

•See  Tise  v.  Shaw,  68  Md.  1,  8  (1887). 

4  Pearson  v.  International  Distillery,  72  Iowa,  348,  357. 

'Hill  v.  Smith,  Morris,  70  (1840). 


334          THE  NATURE  AND  SOURCES  OF  THE  LAW 

of  repeal  by  non  user,  they  say:  "It  is  not  said  that  the 
statute  was  repealed  by  non  user  alone,  and  it  cannot  be 
presumed  that  the  court  intended  to  present  such  a 
thought,"  and  they  declare  that  the  repeal  of  the  statute 
discussed  in  that  case  was  by  a  later  statute  and  not  by 
mere  non  user.1 

*S«e  also  p.  245,  note,  ante,  for  desuetude  of  a  Kentucky  statute. 


PAGE 

Abbot  of  Everurike  v.  Abbot  of  Selby,  Year  Book,  8  Edw.  III. 

69,   pi.   35 223 

American  Banana  Co.  v.  United  Fruit  Co.,  213  U.  S.  347 104 

Anderson  v.  Santa  Anna,  116  U.  S.  356 259 

Attorney-General  v.  Attorney-General,   [1912]  A.  C.  571 188 

Baldioin's  Estate,  4  Barr,  248 331 

Baltimore  &  Ohio  Railroad  Co.  v.  Baugh,  149  U.  S.  368 252 

Bank  of  Augusta  v.  Earle,  13  Pet.  519 184 

Bank  of  the  United  States  v.  Deveaux,  5  Cr.  61 185 

Beaumont  v.  Barrett,  1  Moore,  P.  C.  59 217 

Bridge  v.  Johnson,  5  Wend.  342 243 

Brummell  v.  McPherson,  14  Ves.  Jr.  173 200 

Canady  v.  George,  6  Rich.  Eq.  103 330 

Carroll  v.  Carroll,  16  How.  275 256 

Cathcart  v.  Robinson,  5  Pet.  263 247 

China,  The,  1  Wall.  53 48 

Christy  v.  Pridgeon,  4  Wall.  196 256 

City  v.  Lamson,  9  Wall.  477 258 

Cookney  v.  Anderson,  1  DeG.  J.  &  S.  365 218 

Coursen's  Will,  3  Green  Ch.  408 271 

Dartmouth  College  Case,  4  Wheat.  518 189 

Dodge  v.  Woolsey,  18  How.  331 186 

Doe  v.  Bliss,  4  Taunt.  736 200 

Douglass  v.  County  of  Pike,  101  U.  S.  677 258 

Dugdale  v.  Dugdale,  L.  R.  14  Eq.  234 218 

Dulieu  v.  White  &  Sons,  [1901]  2  K.  B.  669 117 

Dumpor's  Case,  4  Co.  119  b 200 

Etting  v.  Bank  of  United  States,  11  Wheat.  59 243 

Field  v.  Clark,  143  U.  S.  649 170 

Fowler  v.  Peirce,  2  Cal.  165 169 

Franklin  v.  Coffee,  18  Tex.  413 10 

Gallatin  v.  Bradford,  Hard.  365  n 246 

Gardner  v.  The  Collector,  6  Wall.  499 168 

Gay  v.  Gay,  Styles,  258 238 

Gelpoke  v.  Dubuque,  1  Wall.   175 257,259 

Genesee  Chief,  The,  12  How.  443 242 

Glancey  v.  Jones,  4  Yeates,  212 330 

Gregg  v.  Wyman,  4  Gush.  322 99 

Green  County  v.  Conness,  109  U.  S.  104 259 

Hall  v.   Corcoran,   107   Mass.  251 99, 263 

Hampden  Case,  11  Q.  B.  483 110 

Havemeyer  v.  Iowa  County,  3  Wall.  294 258 

335 


336  TABLE  OF  CASES  CITED 

PAGE 

Heidenwag  v.  Philadelphia,  168  Pa.  72 333 

Hensman  v.  Fryer,  L.  R.  2  Eq.  627 ;  3  Ch.  420 218 

Hepburn  v.  Qriswold,  8  Wall.  603 242 

Heydon's  Case,  3  Co.  7 178 

ifickman  v.  Boffman.  Hard.  348 245 

Hill  v.  Smith,  Morris,  70 333 

Homer  v.  Commonwealth,  106  Pa.  221 332 

Hope  Insurance  Co.  v.  Boardman,  5  Cr.  57 185 

Ion's  Case,  2  Den.  C.  C.  475 267 

James  v.  Commonwealth,  12  S.  &  R.  220 330 

Johnes  v.  Johnes,  3  Dow,  1 266 

Johnson  v.  Willis,  7  Gray,  164 117 

Kendall  v.  Green,  67  N.  H.  557 292 

Kielley  v.  Carson,  4  Moore,  P.  C.  63 217 

Kitchen  v.  Smith,  101  Pa.  452 332 

Kuhn  v.  Fairmount  Coal  Co.,  215  U.  S.  349 257 

League  v.  Egery,  24  How.  264 256 

Lee  County  v.  Rogers,  7  Wall.  181 258 

Legal  Tender  Cases,  12  Wall.  457 243 

Leigh  v.  Kent,  3  T.  R.  364 332 

Le  Mason  v.  Dixon,  W.  Jones,  173 180 

•London  Street  Tramways  Co.  v.  County  Council,  [1898]  A.  C. 

375  217 

M.  v.  B.,  Year  Book  40Edw.  Ill,  34 188 

Marshall  v.  Welwood,  38  N.  J.  Law,  339 96 

Mmot  v.  Russ,  156  Mass.  458 142 

Mitchell  v.  Burlington,  4  Wall.  270 258 

M oss  v.  Townsend,  1  Buls.  207 298 

Mostyn  v.  Fabrigas,  Cowper,  161 34 

Muhlker  v.  N.  Y.  &  Harlem  R.  R.  Co.,  197  U.  S.  544 259 

Nichols  v.  Eaton,  91  U.  S.  716 227 

Noble  v.  Bank  of  Kentucky,  3  A.  K.  Marsh.  262 246 

O'Hanlon  v.  Myers,  10  Rich.  128 330 

Ohio  Ins.  Co.  v.  Debolt,  16  How.  416 257 

Orleans,  The,  11  Pet.  175 242 

Parapano  v.  Happaa,  [1894]  A.  C.  165 328 

Paul  v.  Virginia,  8  Wall.  168 184 

Pearson  v.  International  Distillery,  72  Iowa,  348 333 

Pelham  v.  Gregory,  3  Bro.  P.  C.  (Toml.  ed.)  204 217 

Pells  v.  Brown,  Cro.  Jac.  590 236-239 

People  v.  Mayor  of  New  York,  25  Wend.  252 243 

Perolio  v.  Doe,  197  Ala.  560 34 

Phillips  v.  Bury,  2  T.  R.  346 114 

Porter's  Appeals,  30  Pa.  496 331 

Postnati,  Case  of  the,  2  State  Trials,  675 188 

Prior  of  Lewes  v.  Bishop  of  Ely,  Year  Book,  32  Edw.  I,  (Hor- 

wood's  ed.)  p.  32 223 

Queen  v.  Archbishop  of  Canterbury,  11  Q.  B.  483 110 

Queen  v.  Eastern  Counties  R.  Co.,  10  M.  &  W.  58 47 

Rails,  County  of  v.  Douglass,  105  U.  S.  728 259 

Read  v.  Bishop  of  Lincoln,  [1892]  A.  C.  654 217 


TABLE  OP  CASES  CITED  337 

PAGE 

Reed  v.  Bullock,  Lit.  Sel.  Cas.  510 246 

RespuUioa  v.  Commissioners  of  Philadelphia,  4  Yeates,  181..  330 

Rex  v.  Bishop  of  Chichester,  Year  Book,  39  Edw.  III.  7 167 

Rex  v.  Jefferies,  1  Str.  446 168 

Rylands  v.  Fletcher,  L.  R.  3  H.  L.  330 96,  97 

Saint  John  Peerage  Claim,  [1915]  A.  C.  282 217 

Sauer  v.  New  York,  206  U.  S.  536 259 

Scattergood  v.  Edge,  12  Mod.  278 238 

Shelley's  Case,  1  Co.  93 142, 294 

Sherman  v.  Story,  30  Cal.  253 169 

Smith  v.  Brown,  L.  R.  6  Q.  B.  729 117 

Smyth  v.  Lyon,  133  U.  S.  315 184 

Snowden  v.  Snowden,   1  Bland,  550 333 

State  v.  Findlay,  2  Bay,  418 329 

State  v.  O'Bannon,  1  Bail.  144 329 

State  v.  Tidwell,  5  Strob.  1 329 

Strawbridge  v.  Civrtiss,  3  Cr.  267 184 

Sullivan  v.   Sullivan,   106  Mass.  474 183 

Swift  v.  Tyson,  16  Pet.  1 227, 251-256, 259 

Taylor  v.   Tpsilanti,  105  U.  S.  60 259 

Thomas  Jefferson,  The,  10  Wheat.  428 242 

Thompson  v.  Perrine,  103  U.  S.  806;   106  U.  S.  589. 259 

Thomson  v.  Lee,  3  Wall.  327 258 

Tise  v.  Shaw,  68  Md.   1 333 

Tompkins  v.  Colthurst,  1  Ch.  D.  626 218 

Watson  v.  Blaylock,  2  Mill,  351 330 

Watson  v.  Jtmes,  13  Wall.  679 116 

White  v.  Boot,  2  T.  R.  275 332 

Wilson  v.  New  Bedford,  108  Mass.  261 96 

Winslow  v.  Kimball,  25  Maine,  493 183 

Wright  v.  Crane,  13  S.  &  R.  447 331 


TABLE  OF  AUTHORS  COMMENTED  ON  OB 
QUOTED 


Adamson,  145 

Austin,  2,  16,  24,  65,  66,  72,  73, 
75-81,  85,  87,  88,  90,  94,  108, 
130,  133,  138-140,  144,  157, 
160,  222-224,  228-232,  234, 
283,  288,  303-305,  307 

Bentham,  88,  222,  277 

Bergbohm,   309 

Blackstone,  160,  167,  219-232, 
282,  284 

Bliss,  78  n. 

Bracton,  212 

Brinz,  59 

Britton,  213 

Brown,  131 

Buckland,  137 

Billow,  172 

Capitolinus,  203,  204 

Carter,   93,  99,  233-239,  283-292 

Celsus,  88 

Clark,  308 

Coke,    167,    194,  216 

Cooley,  247 

Dernburg,  208 

Dicey,  2,  130,  183  n. 

Duck,  265,  266 

Dwarris,    168 

Ehrlich,  162  n.,  277  n. 

Fleta,  212 

Forteseue,  213 

Gengler,  210 

Gerber,  326 

Gierke,  54,  55 

Gilbert,  308 

Glanville,  212 

Greer,  294 

Grimke,  330 

Guyet,  191 

Hale,  160,  218 

Hammond,  162,  222-232 


Hargrave,  194 

Harrison,  111,  151 

Hegel,   23,   28,    89 

Hoadly,  102,  125,  172 

Hobbes,  16,  75 

Holland,  9-11,  129,  133,  134,  137, 

144-147 

Holmes,  49,  104  ». 
Holt,  114  n. 
Holtzendorff,  326 
Hooker,  88 
Hughes,  173  n. 
Ihering,    18,   30,   36,  61-64,  171, 

279,  297,  318 
Jordan,  207,  208 
Kant,  72-74,  95 
Karlowa,  28 
Keller,  208 
Krause,  89 
Kriiger,  308 
Lewis,  268 
Lightwood,  147-150 
Littell,  246  n. 
Littleton,  213 
Macaulay,  204 
Maine,    35,    88,    275,    297,    304, 

307 

Maistre,  Joseph  de,  138 
Maitland,  55  n.,  212-215 
Maurenbrecher,  210 
Meurer,  28 
Placentinus,  191 
Plato,  45 
Platt,  145-147 
Plowden,  215 
Puchta,  299 
Pulton,  195 
Savigny,    89-91,    176,    178,    208, 

278,  299,  300,  319 
Sidgwick,  17 


339 


340  TABLE  OF  AUTHORS 

Smith,  George  H.,  15,  309  Thurlow,  110  n. 

Smith,    Munroe,    281  Uhrig,  41 

Sohm,  181,  192,  202  n.,  319  Wachter,   208 

Stobbe,  208,  321-323  Windscheid,  179,  193 

Story,   129,  278  Wundt,   138  n. 

Thibaut,  160,  206,  207,  210  Yale,  296,  297 

Thon,  18  Zitelmann,  28 


INDEX1 


Abrogation  by  desuetude.  See 
Statutes 

Acts  of  Sederunt,  199,  211 

Adjective  Law.     See  Procedure 

Administrative  and  judicial  func- 
tions, difference  between, 
113,  114 

Administrative  officers,  protec- 
tion of  rights  of  individuals 
by,  22,  38,  105,  319 

,  exercise  of  judicial  powers 

by,  113,  271 

Administrative  rules,  sources  of 
Law,  110-112 

Admiralty,  48,  127,  242 

JEJquitas  in  the  Roman  Law,  307, 
308 

Analytic  treatment  of  the  Law. 
See  Law 

Animals  as  legal  persons.  See 
Legal  persons 

Appellate  courts,  opinions  of, 
not  binding  in  Germany  on 
inferior  courts,  117,  119,  120, 
208-210 

,  opinions  of,  binding  in 

Common  Law  countries  on 
inferior  courts,  119,  211,  243 

Artificial  persons.  See  Legal 
persons 

Authority  in  the  Law,  260,  261, 
266-268;  and  see  Experts, 
Judicial  precedents 

Autonomy,  158,  159,  325-328 

Bar,  opinion  of  the,  262 
Bible.     See  Hebrews 

California,    miners'    customs   in, 

296 
Charitable  donations,  58-60,  310- 

314 


Children,  29,  30,  37-39 

Church  of  England,  organization 

of,   rests   on   State,    109  n., 

327 
Church    Courts,    109,    110,    115, 

157,  327 
Church,   laws  of  the,    109,    110, 

155-158,  327,  328 
,  laws  of  the,  not  statutes 

of  State,  155-158 
Church  Universal,  not  a  juristic 

person,  310 
Churches,    as    corporations,    56, 

310-314 
,  as  autonomous  bodies,  327, 

328 
Civil    Law.      See    Common    and 

Civil  Law 

Citations,  Law  of,  264,  265 
Classification  of  the  Law,  3,  4, 

35,  36 

Clubs,  Law  of,   108,  109 
,   rules   of,   not   statutes  of 

State,  155-157 
Codes,    4,    186,    204,    233;    and 

see  Corpus  Juris 
Colonies,  English,  196,  197,  244- 

247 
Command,   meaning  of  term   in 

Jurisprudence,  24 
of  Sovereign,  whether  Law 

is,  85-88 

Common    and    Civil    Law,    doc- 
trines common  to,  may  not 

be  necessary,  148,  149 
,   comparison   between,   268- 

280 
,    imaginary    cases    in,    275- 

277 
,  both  developed  by  learned 

men,  not  by  legislatures  or 

by  the  people,  281 


also  Table  of  Authors  Commented  on. 
341 


342 


INDEX 


Common  Law,  definitions  in.  See 

Definitions 

Conflict  of  Laws,  128-130 
Constitution    of    United    States, 

76-78,    184,    189,    228,    248, 

256-259 
Constitutions,  written,  123,  153, 

154 
Construction,  rules  of,   173-175; 

and  see  Statutes 
Contracts.     See     Interpretation, 

Municipal  Bonds 
Corporations,  fiction  in   Federal 

courts  as  to  membership  in, 

34,  184,  185 

,  as  legal  persons,  50-57 

,  de  facto,  50  n. 

,  whether  real  things,  52,  53, 

56 
,  whether    they    hare    real 

wills,   54,   55 

,  duties  of,  55 

,  how  created,  56,  57 

,  sole,  57-59,  316  n. 

,  gifts  in  pios  usus  probably 

held  by,  59,  310-314 
,     by-laws     of,     not     Law, 

108 
,  by-laws  of,  not  statutes  of 

State,   155-158 

,  municipal,  155 

Corpus  Juris,  186,  204,  260,  265, 

310,  320 
Courts,  113-125 
• ,  whether  discoverers  of  the 

Law,  93-103 

,  functions  of,  not  like  those 

of    discoverers    in     natural 

science,  101,  224,  225 
,  functions  of,  not  like  those 

of  physicians,  103 

,  must  be  applied  to,  114 

— — ,  power  of,  to  enforce  their 

decisions,  not  essential,  115, 

116 
,  when  they  differ,  what  is 

the  Law,  116-120 
— — ,  limits  of  powers  of,   121- 

123,  302 
,  in  U.  S.,  never  absolutely 

bound  by  their  own  decisions, 

242 


Courts,  should  follow  their  own 
notions  of  morality,  not 
those  of  community,  287-290 

.  See  Appellate  courts,  Rules 

Custom,  whether  merely  evidence 
of  the  common  consciousness 
of  the  people,  90,  299,  300 

,  as  a  source  of  Law,  235- 

239,  282-301 

,  not  the  sole  source  of  non- 
statutory  Law,  282-290 

,  is  practice,  not  opinion, 

285,  288 

,  not  source  of  Law  of  pro- 
cedure, 291 

,  chief  source  of  Law  in 

matters  of  interpretation, 
292 

,  in  matters  of  contract,  292 

,  as  affecting  Law  and  deci- 
sions in  cases  of  negligence, 
293 

,  importance  of,  as  source  of 

Law,  exaggerated,  293,  294, 
299,  300 

.  See  Judicial  precedents 

Customs  of  Hebrews,  antagonis- 
tic to  the  Law,  300 

of  miners.     See  California 

Decedents,  estates  of.  See  Succes- 
sion. 

Decisions  and  Law,  difference  be- 
tween, 157,  158 

Deoreta  of  the  Roman  Emperors, 
202,  203 

Defence,  20,  21;  and  see  Self- 
defence 

Definitions,  in  the  Law,  3,  4,  275 

,  in  the  Common  Law  only 

dicta,  3 

Democracy,  real  rulers  in,  not 
more  numerous  than  in  mon- 
archy, 67 

Deodands,  47,  48 

Deontology,  139;  and  fee  Moral- 
ity 

Desuetude.     See  Statutes 

Dicta  not  judicial  precedents,  261 

Digest,  Justinian's,  interpretation 
of,  186,  204 

.    See  Corpus  Juris 


INDEX 


343 


Discoverers  of  the  Law,  judges 
whether.  See  Courts 

Divine  Law,  70,  71,  110,  300,  304, 
306 

Dogs.     See  Legal  persons 

Duty.    See  Rights  and  duties 


Ecclesiastical.     See  Church 
Edict   of   the   praetor,    199,   264, 

270,  308 
Equity,  as  a  source  of  Law,  307, 

308 

,  in  English  Law,  119,  307 

jurisdiction  and  procedure 

in  U.  S.  Federal  courts,  248, 

249 

.  See  JEquitas 

Ethics.     See  Deontology,  Moral- 

ity 

Evidence,  conclusive,  no  real  evi- 
dence, 101,  102 

,  of  the  Law,  decisions  as, 

101,  102,  219-222,  235,  236, 
254-256 

,  of  the  Law,  custom  as,  90, 

299,  300 

Evolution  in  Jurisprudence,  1, 
131,  132,  136-138,  239,  297, 
298,  309 

Examples,  use  of,  important,  4 

Experts  opinions  of,  sources  of 
Law,  260-281 

,  opinions  of,  how  made 

known  to  the  courts,  262 

,  opinions  of,  when  author- 
ity, 263-267 

Ex  post  facto,  the  Law  is  con- 
stantly, 99,  100,  231 


Family,  rules  of  head  of,  not 
statutes  of  State,  156 

Federal  courts  in  U.  S.,  how  far 
they  follow  State  Law,  248- 
259;  and  see  Equity 

Federal  governments,  sovereign- 
ty in,  76-78 

Federal  government  of  U.  S.,  re- 
lation to  the  States,  159  n. 

Fictions,  historic,  30-35 

,  dogmatic,  36,  37,  51 


Fiction  as  to  citizenship  of  mem- 
bers of  corporations,  in  Fed- 
eral courts,  34,  184,  185 

Fictitious  persons.  See  Legal 
persons 

Fiscus,  60 

Foreign  statutes  not  sources  of 
Law,  162 

France,  jus  scriptum  in,  160 

,  enactment  and  publication 

of  statutes  in,  163-166 

,  legislative  interpretation 

of  statutes  in,  188 

,  desuetude  of  statutes  in, 

193 

,  judicial  precedents  in,  210 

Free  will.    See  Will 

Grains,  a  jurisconsult  without 
jus  respondendi,  263 

Gerichtsgebrauch  as  a  source  of 
Law  in  Germany,  206-210 

Germany,  Law  of,  41,  54,  164, 
270;  and  see  Appellate 
courts,  Autonomy,  Judicial 
precedents,  Jus  scriptum, 
Legislatures,  interpretation 
by,  Reception,  Statutes,  de- 
suetude of,  Stiftungen 

Gods.  See  Legal  persons,  Super- 
natural beings 

Greek  Law,  45,  47,  49 

Hebrews,  Law  of,  antagonistic  to 
their  customs,  300 

,  Law  of,  as  to  animals,  45 

Hereditas  jacens,  61,  315-319 

,  whether  it  represents  an- 
cestor or  heir,  318 

,  whether  juristic  person, 

318,  319 

,  in  Scotland,  juristic  per- 
son, 319 

Historical  Jurisprudence,  150, 
151 

Human  beings.  See  Legal  per- 
sons 

Ignorance  of  Law  no  excuse,  25, 

102,  166,  167 
Imaginary  cases  in  Common  and 

Civil  Law,  275-277 


344 


INDEX 


Inanimate  things.  See  Legal 
persons 

Indian  codes,  cases  in,  204 

Infants.     See  children 

Insane  persons.  See  Legal  per- 
sons 

Interests,  human,  18 

.    See  Protection  of  interests 

International  Law.  See  Law  of 
Nations,  Private  Interna- 
tional Law 

Interpretation  of  contracts.  See 
Construction,  rules  of,  and 
Custom 

of  statutes.  See  Statutes, 

interpretation  of 

Iowa,  desuetude  of  statutes  in, 
333 

Judges.     See  Courts,  Jurists 

Judicial  and  administrative  func- 
tions, difference  between, 
113,  114 

Judicial  precedents,   198-259 

,  character  of,  198,  99 

,  in  Roman  Law,  200- 

204 

,  in  Germany,  205-210 

,  in  France,  210 

,  in  Scotland,  210 

,  in    England,    124,    211-240 

,  in  England,  generally,  not 

always,  followed,  216 

,  in  England;  House  of 

Lords  bound  by  its  own  de- 
cisions, 217 

,  in  England,  sources  of  Law, 

not  merely  evidence  of  pre- 
existing Law,  218-240 

,  opinions  by  divided  court, 

243 

,  in  the  U.  S.,  241-259 

,  effect  of,  in  the  U.  S.,  same 

as  in  England,  241-243 

,  in  the  U.  S.,  opinions  of 

courts  in  other  States,  243 

,  in  the  U.  S.,  decisions  in 

English  courts,  how  far, 
244-247 

,  in  the  U.  S.,  sources  of 

Law,  not  merely  evidence  of 
preexisting  Law,  248-259 


Judicial  precedents,  English  post- 
revolutionary  decisions  not 
to  be  cited  in  certain  States 
as,  245  n. 

,  dicta  of  judges,  not,  261 

,  rather  than  custom,  usual- 
ly origin  of  Law,  294-296 

,  causes  rather  than  conse- 
quences of  custom,  297-300 

Jurisconsults,  Roman,  201,  263- 
265 

Jurisprudence,   133-151,  161 

,  term  disliked  by  practising 

lawyers,  2 

,  analytic,  1-5,  144-147 

,  comparative,  133-135,  138, 

143,  144,  150,  309 

,  general,  133,  135-139,  143, 

148-150 

,  particular,  133,  134,  147 

,  medical,   134 

,  as  a  branch  of  anthropol- 
ogy, 136,  137 

,  sociological,  139  n.,  141  n. 

,  ethical  or  deontological, 

139-144,  303-307 

,  whether  formal  science  as 

opposed  to  material,  144-146 

,  historical,  150,  151 

,  pure,  150 

Juristic  persons.  See  Legal  per- 
sons 

Jurists  and  judges,  relative  po- 
sition in  Civil  and  Common 
Law,  268-272 

,  Law  made  by,  compared, 

272-280 

Jurists,  not  legislatures  or  the 
people,  have  developed  the 
Law,  281 

,  probable  future  importance 

of,  in  Common  Law,  280,  281 

.    See  Experts,  Jurisconsults 

Jus  respondendi,  201,  202,  263 

Jus  scriptum,  160,  161 

Jus  trium  liberorum,  given  to 
gods,  40 

Justice,  16,  17 

Justinian.     See  Corpus  Juris 

Kentucky  Law  of  non-citation, 
245  n. 


INDEX 


345 


Language,  growth  of;  fallacious 
analogy  to  growth  of  Law, 
136,  297,  298 

Law,  The,  84-112 

,  analytic  treatment  of,  1-5, 

144-146 

,  13  the  rules  followed  by 

the  courts,  84,  93-95,  101- 
105,  116,  117,  308,  309 

and  sources  of  Law,  differ- 
ence between,  84,  308 

,  and  a   law,    difference  be- 
tween, 87 
,  whether    the    command    of 

the  Sovereign,  85-87 
,  whether    in    the    common 

consciousness  of  the  people, 

89-92,    299,    800;     and    see 

Reception     of     the     Roman 

Law 
,  whether  discovered  by  the 

courts,  93-103,  233-239 
• ,  whether    it    preexists    the 

decisions   of  the  courts,  98, 

100,  218-239 
,  distinction     between,     and 

other  rules,  104,  105 
,  if     habitually      disobeyed, 

whether    to   be   called    Law, 

105,  106 
,  does  not  comprise  all  rules 

acted  on  by  the  courts,  108, 

109 
,  administrative      rules      as 

sources  of,  110-112 
,  what    it    is,    when    courts 

differ,   116-120 

is  all  judge-made,  124,  125 

of  Nations,  126-132 

•  of   Nations,    whether    Law, 

130-132 
,  ethical  treatment  of,   139- 

144,    303-307 
,  historical      treatment      of, 

150,  151 

and  decisions,  difference  be- 


tween, 157,  158 

-  and  fact,  292,  293 

-  of  nature,  306,  307 

of  God.     See  Divine  Law 


Law,  written  and  unwritten.  See 
Jus  scrip  turn 


Legal  duties,  15;  and  see  Legal 
rights  and  duties 

Legal  persons,  27-64 

,  animals,  20,  42-45 

,  normal  human  beings,  28, 

29 

,  abnormal  human  beings, 

29,  30,  37-39 

,  supernatural  beings,  39-42 

,  inanimate  things,  46-48 

,  juristic,  artificial,  or  ficti- 
tious, 49-61 

Legal  rights,  temporary  suspen- 
sion of,  Ihering's  view  as  to. 
61,  63 

,  and  duties,  7-26 

,  of  State,  79-83 

Legislation,  science  of,  139-143, 
147,  148 

Legislative  functions  of  indi- 
viduals, 153 

Legislatures,    subordinate,    153-5 

,  interpretation  of  statutes 

by,  187,  188 

,  exercise  of  judicial  powers 

by,  271 

Lords,  House  of,  bound  by  its 
own  decisions,  217 

Maryland,  desuetude  of  statutes 
in,  333 

Medical   Jurisprudence,    134 

Might  is  right,  71 

Miners'  customs.     See  California 

Minority  opinions  often  seem 
strongest,  though  wrong,  257 

Mohammedan  Law,  328 

Morality  of  laws,  how  far  a  ques- 
tion for  Jurisprudence,  139- 
144,  303-307 

Morality,  rather  than  custom,  the 
guide,  287-290,  300 

,  as  source  of  Law,  302-309 

,  test  of,  degree  of  practical 

consequence  in  Jurispru- 
dence, 305-307 

Municipal  bonds,  decisions  of  U. 
S.  Supreme  Court  as  to,  227, 
228,  256-259 

Nature,  Law  of.     See  Law 
Negligence.     See  Custom 


346 


INDEX 


New  Jersey,   Governor   formerly 

Chancellor     and     Ordinary, 

271 
,  Law     of     non-citation     of 

English  cases,  245  n. 
New   York    Senate,    as    a   court, 

271 

Non-contentious  proceedings,  115 
Non-political  bodies,  Law  of,  108, 

109 

Obiter  dicta.    See  Dicta 
Obligation,    legal,    as   equivalent 

for  legal  duty,  16 
Opinion.      See     Public     opinion, 

Custom,  Bar 
Original    contract.      See    Social 

contract 

Parliament,  whether  the  Sover- 
eign, 66,  76 

,  acts  of,  did  not  extend  to 

colonies,  unless  expressly 
mentioned,  196 

Passive  rights,  Ihering's  doctrine 
of,  61-63 

Pennsylvania,  desuetude  of  stat- 
utes in,  330-332 

,  Law  of  non-citation  of 

English  cases,  245  n. 

People  not  creators  of  the  State, 
68 

,  common  consciousnes  of 

the.  See  The  Law 

Persons.     See  Legal  persons 

Pii  usus  in  the  later  Roman 
Empire,  310-314 

Possession,  literature  on,  in  Civil 
Law,  278 

Posthumous.     See  Unborn 

Praetor,  31;   and  see  Edict 

Precedents.  See  Judicial  prece- 
dents 

Prescription,   145,   146 

Primitive  society,  35,  66,  126, 
131,  297,  298,  300 

Private  International  Law,  128- 
130 

Procedure,  157,   199,  248,  291 

Proclamation  and  statute,  no  ju- 
ristic difference  between, 
154,  155 


Protected  interests,  whether 
rights,  17,  18 

Protection  of  human  interests  by 
society,  modes  of,  19-22 

Prussian  codes,   188 

Public  opinion,  9-11,  124,  285, 
287-290 

Publication  and  promulgation  of 
statutes,  distinction  between, 
162,  163 

Publication  of  statutes,  none  in 
ancient  Rome,  162 

,  on  the  Continent  of  Eu- 
rope, 163-165 

,  in   Scotland,    166 

,  in  England,  167 

,  at  different  times  for  dif- 
ferent places,  164-166 

Public  policy,  question  of  moral- 
ity, 124,  303 

Reception  of  Roman  Law,  93, 
206,  320-324 

Recht,  ambiguity  of  term,  8 

Rechtslehre,  95 

Religion,  as  foundation  of  State, 
70,  71 

Reports,  English,  citation  of 
cases  in,  213-216 

Rescripts  of  the  Roman  Em- 
perors, 202-204 

Right,  ambiguity  of  term,  8 

Rights,  of  society  and  of  the  in- 
dividual, 12,  19,  22 

,  not  protected  interests,  but 

the  power  to  protect  inter- 
ests, 17,  18 

,  of  State.  See  State,  Legal 

rights 

,  and  duties,  7-11;  and  see 

Legal  rights  and  duties 

Roman  Catholic  Church,  56,  109, 
134,  310,  328 

Roman  Law.  See  Civil  Law, 
Edict,  Jurisconsults,  Praetor, 
Twelve  Tables,  Reception, 
Rescripts 

Rules  of  Court,   199 

Saints.    See  Legal  persons 
Sanctioning  a  law,  164 
Schoffen,  opinions  of,  205,  206 


INDEX 


347 


Scotland,  publication  of  statutes 
in,  166 

,  desuetude  of  statutes  in, 

193 

,  legislative  powers  of  courts 

in,  199,  211 

,  judicial  precedents  in,  210, 

211 

,  hereditas  jacens  is  juris- 
tic person  in,  319 

Self-defence,  19-21,  105 

Ships  as  legal  persons,  48 

Social  contract,  72-74 

Sociological  Jurisprudence,  139 
».,  141  n. 

Sources  of  the  Law,  123-125,  152 

,  and  the  Law,  difference  be- 
tween, 84,  124,  125,  170,  171, 
308 

,  comprise  administrative 

rules,  110-112 

South  Carolina,  desuetude  of 
statutes  in,  329,  330 

,  statute  of,  as  to  acts  of 

Parliament,  197 

Sovereignty,  65,  74-79 

,  in  U.  S.,  76-78 

State,  The,  65-83 

,  modes  of  protection  of  hu- 
man interests  by,  19-22 

,  who  creates  and  upholds  it, 

67-69,  121-123 

,  merely  a  personified  ab- 
straction, 65-70 

,  whether  its  power  subject 

to  legal  limitation,  69,  70 

,  does  its  organization  rest 

on  the  will  of  God,  70,  71 

,  does  its  organization  rest 

on  might  being  right,  71 

,  does  its  organization  rest 

on  an  original  social  con- 
tract, 72-74 

,  legal  rights  of,  79-83 

,  organization  of,  limits 

power  of  courts,  121-123 

.     See  Rights  of  society 

Statute  of  Frauds,  varying  in- 
terpretations of,  181,  182 

Statutes,   152-197 

,  sources  of  Law,  not  Law, 

124,  125,  170-J72 


Statutes,  various  names  of,  153, 
154 

,  of  non-political  bodies,  155- 

158 

,  form  of,  1C9-161 

,  generality  of,  161 

,  foreign,  not  sources  of 

Law,  162 

,  enactment  of,  162-169 

,  public  and  private,  proof 

of,  in  England,  168 

,  public  and  private,  proof 

of,  in  U.  S.,  168,  169 

,  interpretation  of,  170-188 

,  interpretation  of,  by  legis- 
lature, 187,  188 

,  irrepealable,    189 

,  desuetude  of,  189-197 

,  desuetude  of,  in  the  Civil 

Law,  190-193 

,  desuetude  of,  in  England, 

193-196 

,  desuetude  of,  in  U.  S.,  196, 

197,  245  n.,  329-333 

,  English,  position  of,  in  the 

U.  S.,  196,  197 

,  publication  of.  See  Publi- 
cation 

Stiftungen,  58,  59,  313 

,  pii  usus  probably  not,  313 

Succession  in  Common  Law,  315- 
317 

in  Civil  Law,  315,  317-319 

Supernatural  beings  as  legal  per- 
sons.    See  Legal  persons 

Supreme  Court  of  the  U.  S.,  on 
citizenship  of  members  of 
corporations,  34,  184,  185 

,  Swift  v.  Tyson,  226,  227, 

251-255 

,  decisions  on  municipal 

bonds,  227,  228,  256-259 

will  overrule  its  prior  de- 
cisions, 242 

TugendleJire,  95 

Twelve  Tables,  growth  of  Ro- 
man Law  from,  by  fictions, 
31 

,  growth,  of  Roman  Law 

from,  by  interpretation,  180, 
181,  192 


348 


INDEX 


Twelve  Tables,  cease  to  be  direct 
sources  of  Law,  264 

Unborn  children,  rights  of,  38, 
39 

United  States.  See  Constitu- 
tion, Federal  courts,  Federal 
governments,  Judicial  prec- 
edents, Sovereignty,  Stat- 
utes 

Unwritten  Law.  See  Jus  scrip- 
turn, 

Utility  as  the  test  of  morality, 
304-307 

Visitors,  functions  of,  113  n. 
Volksgeist,  89-92,  299,  300 

Weisthilmer,  205 
Will,  necessary  for  the  exercise 
of  rights,  23-27 


Will,  not  necessary  for  creation 

of  duty,  24,  25 
,  freedom  of,  not  sole  reason 

for      creating      rights,      23, 

24 

,  attribution    of,    to    abnor- 
mal human  persons,  29,  30, 

37,  38 
,  attribution  of,  to  animals, 

42-45 
,  attribution   of,   to   things, 

46-48 
,  attribution   of,  to  juristic 

person's,  49-55 
,  no  such  thing  as  a  general, 

54,  55 
Wills,  rules   of  construction  in, 

173-176 
Written  Law.    See  Jus  tcriptu-m 

Year  Books,  213-215 


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